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MILITARY CONTROL, 



JCOMMAND AND GOVERNMENT 




OF THE 



ARMY. 



.BY AN OFFICER OF THE LINE. 

/ n 



PRINTED BY A. B. CLAXTON & CO. 

1839. 






i 




PREFACE. 

The following argument was prepared years ago, 
while the author was a member of the staff. It was 
the result of his own unbiassed reflections on our mili- 
tary system, which he saw to be working badly ; many 
features of the army organization have since been al- 
tered, and many changes of the laws and regulations, 
have also occurred, but nothing has been done to 
reach what he conceives to be the radical defect of 
the system — indeed it has been growing continually 
worse, as would naturally be supposed, under a pro- 
cess of temporary expedients. 

To discover the root of the defect, by looking be- 
yond the laws to the Constitution, and beyond pre- 
vailing notions to the true nature of the army institu- 
tion, was the motive that prompted the author's re- 
searches ; and to develop that defect and propose 
the remedy, is his design in the publication of these 
remarks. It may be that, ere long. Congress get- 
ting tired of experiments in military legislation, may- 
look attentively with its own eyes into the nature of the 
army institution, and seek to ascertain its true ad- 
justment, under the Constitution ; then these views 
may suggest a thorough reformation both in the orga- 
nization of the army, and in the rules and regulations 
for its better government. 



MILITARY CONTROL, 



COMMAND AND GOVERNMENT OF THE ARMY 



SECTION I. 

The difficulties in the army service on the subject 
of rank and command, or as it may preferably be deno- 
minated, military control, are numerous, and they are 
important; not only in relation to its harmony as a so- 
ciety, and its efficiency as an arm of national warfare ; 
but yet more so, as being in fact the poisonous fruits 
of a vicious legislation, threatening the civil welfare 
of the country. They grow more numerous and im- 
portant by reason of the delays which have taken 
place, of any competent decision of the principles to 
which they refer. 

Were we to judge from the amount of fruitless 
controversy proceeding from this cause — from the yet 
unsettled opinions among our military men — from the 
apparent evasion on the part of the national legislature, 
of the questions involved — and from the peremptory 
decision of them, by the Executive, acting, from the 
necessity of the case, beyond its own legitimate 
sphere ; we should regard the principles, on which 
the solution of these difficulties depends, as veiled in 
impenetrable darkness. The real cause is, however, 
as we have said, to be found in vicious legislation, and 
this has proceeded mainly from the pernicious prac- 
tice so prevalent with us, in military matters, of copy- 



ing foreign institutions and practices, without suffici- 
ently reflecting on the differences between their poli- 
tical systems and our own. In the higher departments 
of military arrangement, accordingly, we are pi one to 
regard the British as our examplar ; in the minor, the 
French. Our present purpose leads only to the notice 
of the former : and we shall proceed to develop this 
cause of evil by first giving, in as brief terms as possi- 
ble, such an account of the nature of these difficulties, 
in their connexion with existing doctrines of rank and 
command, as will serve to introduce the subject. 

The Army of the United States, as known to the laws 
creating it, and to the Constitution, laws and regula- 
tions, establishing its organization and defining its du- 
ties, may be described as consisting of the President of 
the United States as " commander-in-chief," and the 
officers and privates under him, divided by organiza- 
tion into fixed legal bodies or corps. These are : first,, 
the arms of service, as cavalry, artillery, and infantry, 
with their respective species ; second, regiments of 
these species of arms ; and, third, companies of these 
regiments. Each of these bodies, and, therefore — after 
adding what is called the general staff — the whole 
army, consists of line and staff; the former being the 
combatants of the army, the latter, assistants or aids 
of the commanders, in various ways, and providers and 
administrators of the means of life and of service. The 
staff at large, most of whom are vested with military 
titles, and the line, all of whose members must of ne- 
cessity be so, consist each of commissioned and non- 
commissioned officers, inclusive of all the grades, from 
the President to the corporal. 

The staff is divided into departments, and into 



branches, the former consisting of corps of officers of 
the various grades of rank, whose functions are alike ; 
the latter of corps of officers, whose grades of rank are, 
or may be, alike, but whose functions are various. It 
is in the former aspect we contemplate the staff when 
viewed abstractedly from the line. It consists of the 
following departments in our service : Adjutant Gene- 
ral's, Inspector General's, Engineer's, Ordnance, 
Quartermaster's, Subsistence, Purchasing, Medical, 
Paymaster's. The names of these departments are, 
for the most part, indicative of the functions assigned 
to them ; while the staff titles of the officers, denote 
their relative rank and authority in their respective 
departments, as, for example, in the department first 
named, there is, 1st. The Adjutant General, or chief 
of the department ; then in order, 2d. Assistant Adju- 
tant General ; 3d. (say) Brigade Majors ; 4th. Adju- 
tants; 5th. Sergeant Majors ; 6th. Orderly Sergeants. 

When viewing the army at large, as composed of the 
legal corps before mentioned, these departments of the 
staff are mingled and divided on the other principle 
into branches, comprehending, more or less, the func- 
tions of the several departments ; as, for examples, the 
general staff, division staff, brigade and regimental 
staff. 

It would require a volume, as large as that in which 
this scheme of organization is attempted to be ex- 
plained, reconciled, and enforced, to develop the al- 
most numberless inconsistencies and extravagancies 
which flow from it, and to depict the paralyzing 
effect it must have on martial efficiency, and on the 
general purposes of good government of the army as a 
national institution. We shall, therefore, attempt no 



8 

more than a brief sketch of its operation on the former, 
leaving the rest to be inferred from this example, and 
from those true principles of organization, and of com- 
mand and government, which we shall set forth and 
enforce in the sequel. 

The second article of the Army Regulations, or In- 
stitutes, purports to prescribe and explain the " base of 
discipline," or rank and command, and the fundamen- 
tal principle of this important subject of military ser- 
vice, is thus clearly expressed by its third paragraph : 
" It is the intention of the Government, that there be 
established in every regiment or corps, and through- 
out the army as one corps, a gr-^dual and universal 
subordination or authority." More forcibly to express 
the singleness of principle, or unity of purpose, herein 
aimed at and promulgated, would be difficult. The 
propriety, the absolute necessity, of this fundamental 
rule of discipline, must be apparent to the slightest re- 
flection ; since, with a steady adherence to it, all must 
perceive the harmony of command an<l concert of ac- 
tion that would follow, and that without such ad- 
herence, confusion and discord would be inevitable. 

The next paragraph sets forth the grades of army 
rank, exemplifying the order in which this principle 
is designed to operate, or exhibiting that range of sub- 
ordination through which this universal authority is to 
be exercised in command. It is in these words : — 
" Under the President of the United States, as com- 
mander-in-chief, the following are the grades of army 
rank: 1, Major General; 2, Brigadier General ; *3, 
Colonel ; 4, Lieutenant Colonel ; 5, Major ; 6, Cap- 
tain ; 7, First Lieutenant ; 8, Second Lieutenant ; 9, 
Third Lieutenant; 10, Cornet or Ensign ; 11, Cadet ; 



12, Sergeant ; 13, Corporal ; and the latter shall be 
superior to all private soldiers, including under that 
denomination, private musicians, artificers, and the 
like." 

The student of these institutes, whom we will sup- 
pose to be a cadet at West Point, having read them so 
far, instantly feels himself on sure and plain ground ; 
any preconceived mystery in military subordination, 
that he might have had, is thus swept clean from his 
mind, and he now feels confident, that whatever addi- 
tional rules may obtain in the details of the service, 
there can be none to interfere with this ; there can be 
nothing to obscure so luminous a principle ; all must 
quadrate with it, and therefore obedience to his supe- 
rior in rank, is at once the guide and the guarantee of 
his safe and honorable career. Judge then of his as- 
tonishment, when, in a step or two further, he comes 
to fourth, fifth, sixth, seventh, and eighth paragraphs, 
and finds so sudden a departure from, and dereliction 
of, a principle so clear, so satisfactory, so natural, and 
so necessary ! What, exclaims he, are these ? " Ser- 
geant Majors ! Quartermaster Sergeants ! Drum Ma- 
jors ! Trumpet Majors ! and what are these commis- 
sioned officers with assimilated and non-assimilated 
rank ? What the general and non-commissioned staff 
with titles so diff*erent from those grades of army rank 
through which all authority was to pass ? What new 
and inconsistent principles of command, checking, 
restricting, and limiting each other, are here pre- 
scribed ? Are not these officers, or at least members, 
of the army ? Is not the staff, whether general or non- 
commissioned, a part of it ? What has become of the 
gradual and universal subordination or authority^ 



10 

which was to obtain throughout the army, even as one 
corps ? 

The staff either is, or is not, a part of the army. If 
it be so, all these designations of rank belonging to it, 
he justly thinks, should have been comprised in the 
statement of grades given in paragraph fourth, so that 
all its parts should pass under the operation of the 
broad rule — the universal one, laid down in the third. 
If not a part of the army, but a sort of independent ad- 
junct, then certainly, on the subject of rank and com- 
mand, it must be independent of the authority prevail- 
ing through it ; neither commanding nor being com- 
manded. 

To settle these unavoidable questions, he seeks to 
inform himself of the nature of the staff, and of course 
finds that its functions are indispensable to the exist- 
ence of the army. They are its life-breath, in the 
department of orders ; its character in the department 
of inspection ; its food in the subsistence; its limbs in 
the quartermaster's ; its health in the medical ; its 
weapons in the ordnance ; its reward in the pay ; and 
its raiment in the purchasing department ; yet strange 
contradiction he thinks it, that while it is also acknow- 
ledged to be a part of the army, it is not comprehended 
in that series of gradual and universal subordination, 
which was to obtain throughout the army, from the 
highest to the lowest member. 

Prosecuting this enquiry, he refers to the rule of 
command among staff officers as laid down in the eighth 
paragraph. He there observes, that while, by para- 
graph sixth, officers of the staff with rank assimilated 
to lineal rank are " considered, in respect to rank, on 
the same footing, as if their rank were lineal," yet by 



II 

this, both classes are restricted in their command over 
officers of the staff having neither of these kinds of 
rank ; that is to say, over those having what is called, 
with singular infelicity of phrase, unassimilated rank, 
within certain prescribed limits. 

He sees in this a further exception to the universal 
rule of authority, and he thinks he sees in it, too, that 
while the latter are absolutely cut off, as most obvi- 
ously they ought to be, from all command whatever 
over the former, the case is not an improbable one in 
service, when this rule, too, must be violated in favor of 
the lineal officer of inferior rank on whom the command 
may devolve; for, whether the chiefs of these unassimi- 
lated staff officers be present or absent, their command 
over their subordinates continuing, such subordinates 
become subject to two masters, which, it is said, from 
the highest of all authority, no man can serve. Their 
own staff chief's authority, or that of the military com- 
mander, one or the other, must prevail. These cases 
present, therefore, further and palpable contradictions 
of the principle of universal authority. The four re- 
maining restrictions in this paragraph present as many 
classes of cases, of the same character. 

More than ever impressed with the vital necessity 
of this universal principle of authority to the very ex- 
istence of an army, he is willing to seek every infor- 
mation, or listen to any explanation, tending to recon- 
cile these contrarieties of doctrine, and so turns to the 
forty-fourth article, purporting to give " the. theory of 
the staff, and a summary of its duties." 

He here finds it stated of staff officers, that as such 
they have no direct command over the troops; that 
they are only the organs, through which their respec- 



12 

tive commanders or chiefs communicate oiders and in- 
structions, either verbally or in writing ; yet he finds 
grounds for the inference, that they have the right, in- 
directly, to command the troops through officers of mi- 
litary grades inferior to their own. Attending parti- 
cularly to the phrase " as such," he thinks he perceives 
as the doctrine intended, (though a very exceptionable 
one,) that while as staff officers, that is, independently 
of their military rank, (which he supposes to be 
merged or suspended while acting in that capacity,) 
they are thus restrained in the article of command; yet 
in their capacity of officers with assimilated rank, they 
are, as before declared, " on the same footing " with 
lineal officers, and in this way are comprehended in 
the system of universal authority, and entitled, at their 
option, or at least when senior to all others present, to 
assume command. 

But next he finds, paragraph 453, that the foregoing 
doctrines are applicable (whatever be really intended 
by them) only to " chiefs of staffs," and to their assist- 
ants, and also to aides de camp and adjutants ; the offi- 
cers of the administrative or disbursing departments 
not being within the contemplation of the article, not- 
withstanding its title, though many of these possess the 
same kind of rank. He next learns, to his utter con- 
fusion, that the chiefs of staffs are to form a chain of 
subordination " among themselves !" 

A little reflection convinces him that these doctrines 
would put to hazard the most vital interests of the ser- 
vice, and that the indispensable principle of unity in 
military command, calls for the uniform military rank 
with which all who are indeed military officers should 
be invested, and the revival of the oft quoted funda- 
mental rule obtaining throughout the army. 



13 



In short, deriving from the Institutes no instruction 
on the subject of his enquiries, he comes at last to the 
conclusion, from his own reflections, that the uncer- 
tainties and difficulties in it, proceed from this — that the 
two-fold connexion of the staff officers with this newfan- 
gled assimilated rank, is never sufficiently at any time, 
and sometimes not at all, adverted to, that even when 
spoken of in their staff capacity strictly, and as it were 
exclusively, yet the effect of the military title they 
bear, is such, as to cause an unwitting, or at least a 
forced, application to them of principles truly applica- 
ble to the lineal officers only ; and again, from the same 
kind of inadvertence or force, an inversion of the prac- 
tice takes place, that is, a distinction where, consistent- 
ly, none should exist, is made ; and we may as well 
add here, must, in the nature of things, be made, be- 
tween lineal officers and officers of the staff holding 
this (so called) assimilated, but in reality, brevet rank; 
regarding the first as possessing command in the line, 
inclusive of the staff; while on the other hand, it 
regards such staff officers as, being merely such, pos- 
sessing an empty, and worse than nugatory, military 
title, conferred without reason, and held accordingly 
without authority. 

But these are not all the difficulties such supposed 
student would meet with in this view of the system. 
He finds on the statute book, to which these Institutes 
refer him, that this same brevet rank, though for other 
causes, is conferred on lineal officers also ; and since 
it did not confer the right to command troops in the 
case of staff officers, either directly or indirectly, 
though they are declared to be " on the same footing as 
if their rank were lineal," he becomes solicitous to 
2 



14 

learn how it will operate in the persons of lineal offi- 
cers themselves, and is thence led into that labyrinth 
of disputation to which the conflicting claims of its pos- 
sessors have given rise. Leaving him, however, to ex- 
plore his mazy way alone, his original guide and light 
having deserted him, we shall close this part of our 
task by a few obvious reflections. 

So far, these difficulties are clearly owing to a de- 
parture from that fundamental rule of authority and 
subordination, deliberately and forcibly laid down in 
the outset, only it would seem to be immediately and 
strangely violated, by numerous restrictions on, and 
exceptions to, its operation. Without the full and 
free operation of that rule, in and over the person of 
every individual in the army, the martial service can- 
not be well conducted, for it is essentially involved in 
the unity of military command. Cramped and mana- 
cled as it now is, by the laws and regulations together, 
the army is rendered unfit for that service for which 
alone it is instituted. 

It might, for illustration sake, be readily imagined, as 
a theoretical history of the matter, that at the moment 
the fundamental rule was laid down, and the series of 
military officers proper, by whom it was to be exer- 
cised, was enumerated, the martial service was the im- 
mediate, and, indeed, only object in view. Afterwards 
occurred the various staff agents, with their functions, 
principally what are called the administrative staff. 
To consider these among the privates of the army, 
besides the degradation, would be to subject their im- 
portant functions to the control of very inferior officers. 
This would not do. On the other hand, to include 
them, as officers, in the series of army rank, would be 



15 

to subject to them, in the measure of their rank, res- 
pectively, the martial service of the army. As little 
would this do. In this dilemma, what remained to be 
done with them as apart of the army? Nothing, but 
to dispose of them by the intermediate principle of 
restriction from military authority on the one hand, 
and exemption from it on the other, within certain arti- 
licial limits ; and they became officers of rank unassimi- 
lated to that of the line. This is an instance of " that 
middle course, which always leads to ruin." In course 
of time, it may be further imagined, these gentlemen 
coveted military rank, and seme of them, through 
legislative ignorance or apathy, got it. But this re- 
vived the same difficulty in a new form, which could 
now only be gotten rid of, by divesting that rank 
itself, through a course of executive legislation quite 
familiar to the army, of all military power in their per- 
sons, and they became thenceforth, in the phrase of the 
regulations, " officers with assimilated," or counterfeit, 
" rank." 

But the ambition Avhich sought the rank, would not 
so readily be deprived of the corresponding functions 
and privileges. Hence a conflict of claims and pre- 
tensions, on both sides of which much law, regulation,- 
and practice, foreign and domestic, are adduced, with- 
out the hope of an ultimate adjustment, unless recourse 
be had to constitutional provisions, and the reason and 
necessity of the case. 

Meanwhile, by way of compromise with these stj^ 
officers, for the actual privation of that, to which the law 
should never have allowed them the slightest claim, 
nor ever have placed them in a situation to think of it, 
a qualified military authority is allowed, or rather pre- 



16 



tended to be allowed, to part of them, by means of the 
rule, " that the chiefs of staff will form a chain of 
subordination among themselves." By way of exem- 
plification of what was not easily to be conceived, it is 
immediately added, " thus the Colonel " (assimilated) 
" who occupies that station in a division, will have a 
direct authority over a Major," (assimilated,) " chief 
of one of the brigade staffs in the same division ; but 
should, in this example, the Colonel give an order to 
the Major, incompatible with the duties of the latter 
towards his brigade, such order would not be obeyed, 
until communicated to the Brigadier General for his 
approbation. The same rule will apply equally to any 
two proximate chiefs of staffs, from the Major General," 
(assimilated,) '' at general head quarters, down to the 
Adjutant of a regiment." Yes. equally well, certainly. 
An authority liable to be countermanded by another ! 
a direct authority indirectly exercised ! an authority 
independent of a Major General, yet not so of his de- 
pendent Brigadier General ! A chain of subordination 
among themselves, yet linked in with, and interrupted 
by, the lineal officers, by and in whom a gradual and 
universal subordination and authority is to take place 
throughout the army, the whole army, staff and all, 
" even as one corps ! !" This needs no comment, cer- 
tainly- 
Enough, we trust, has been said, though much re- 
mains unsaid, to afford a pretty distinct idea of the na- 
ture and extent of the difficulties in question. 

SECTION II. 

Deriving our origin from the British nation, speak- 
ing therefore the same language, accustomed so long 



17 

as colonies to the same government, whose leading 
principles are so congenial to public liberty, it was 
natural, and, perhaps, at the moment of gaining our na- 
tional independence necessary, that our legal institu- 
tions should, for the most part, be moulded on the same 
forms, and be imbued with the same spirit. However 
this may be, it is certain that the legal part of our 
military system bears a striking resemblance to the 
British, and contains what we regard to be the same 
radical defect ; what this is, we shall now endeavor to 
show. 

The British mutiny act and articles of war consti- 
tute an anomaly in legislation, of which, probably, 
no similar instance can be found. Their co-existence, 
the sameness of their provisions, and common relation 
to the same ends, are owing to an accommodation (pro- 
duced by the reprisals of liberty in process of time on 
the power of the ancient monarchy,) between the two 
branches of that Government, which, by a contradic- 
tion of terms, are each said to possess the supreme 
power, namely — the Parliament as omnipotent, with 
whom the act originates, and the King as sovereign, 
from whom the articles proceed. 

This contradiction in its bearing on the military sys- 
tem is attempted to be reconciled by a gloss of this sort : 
the mutiny act is represented as being the outline of 
the military penal law, to be filled up by specifications 
furnished by the articles of war; the one, as it were, 
the geographical map, the other the topographical de- 
tails. The former, it is said, indicates classes of crimes, 
for the most part by a general phraseology, designating 
those to which capital punishments may extend ; while 
to the latter it is left to define them with precision, and 
2* 



18 



prescribe within these limits, the penalties which shall 
actually attach. 

However plausible at first sight this may appear, it 
requires no great discrimination to perceive that tlie 
legislative power of the King, in this matter, efFectii- 
ally supercedes that of Parliament, instead of being 
controlled by it, as some commentators contend. To 
declare what acts or omissions shall be deemed olFen- 
ces, what their degrees of aggravation as such, and 
what particular punishment shall attach to them, thus 
both furnishing the rules of conduct, and prescribing 
for their enforcement all the requisite sanctions, is cer- 
tainly to exercise the legislative power. It would be 
difficult to define this power, by enumerating any other 
functions of which it essentially consists ; and, as to the 
limitations of punishments enjoined by the mutiny act, 
if indeed limitations they can in truth be called, it must 
be obvious to the slightest examination that the boun- 
daries they afford to the King's prerogative in this con- 
cern, are so very wide, that even a despot, though he 
might covet the power to proclaim the absence of all 
restraint on his will, could not desire their practical 
extension. In short, the mutiny act, with its ostenta- 
tious annual enactment, is but the ambiguous form in 
which all this power is acknowledged in the King. 

The apologetic and uncandid language of a late mili- 
tary writer, (Samuel,) cannot avail to change this cha- 
racter of the British military penal law ; but, on the 
contrary, strongly though indirectly confirms it. After 
stating that " so necessary the weight and strength of 
the royal prerogative has, at all times, been found to 
the direction and restraint of the conduct of the military 
body, that it has been always, and is now, fraught with 



19 



a concurrent legislative authority for framing obligatory 
regulations, in certain cases, for the government of the 
army, independent for a long time, if not now indepen- 
dent, of the other branches of the legislature," he pro- 
ceeds to say — " the greatest moderation has been dis- 
covered by Parliament in the use of its legislative facul- 
ty in the affairs of the army ; and wherever and when- 
ever it has been exercised, it has evinced a deference 
to the pre-existing power of the Crown. Its interfer- 
ence, it may be said, has been slow, considerate, and 
sparing ; and it has not at any time had the appearance 
of a clashing of rival authorities, but a silent sharing 
v/ith the Crown of a common right for the common 
benefit ; an unostentatious assumption and enjoyment 
of what lawfully belonged to itself, without molesting 
or touching the royal interests combined with it. The 
event has been the supercession, rather than the posi- 
tiv^e abrogation of the high military prerogative of the 
Crown in the sole making and declaration of the law, 
for the higher descriptions of military offences, A re- 
sult, not of adverse conflict, but of agreement or consent 
between the parties interested." 

Without stopping to comment on the paltering lan- 
guage by which tbese manifest incongruities are at- 
tempted to be dimmed to the reader's observation, we 
would remark that these delicate and gingerly approach- 
es on the part of Parliament to the Crown have cer- 
tainly not been attended with the success here attribu- 
ted to them. Its high military prerogative has not 
been thus seduced from it by Parliament, and it is ap- 
parent, from some of the language of this quotation? 
that its author was somewhat suspicious, at least, that 
the pre-existing power of the Crown, so necessary by 



20 

its weight and strength to the direction and restraint 
of the military body, had not in fact been relinquished 
in any degree to the Parliament, notwithstanding it so 
lawfully belonged to the latter. 

In further confirmation of our views, let us refer to 
the opinion of Lord Loughboro', given from the bench 
in the case of Sergeant Grant in Trinity term, 1792, 
and we think it will be apparent that, while his design 
in expounding the mutiny act is to show and describe 
a limitation on the King's power of making articles of 
war, which we have declared to be co-extensive with 
the whole power of military government, he actually 
shows, by the admissions he is obliged to make, that 
no such limitation exists ; but, on the contrary, that 
there is in fact and of necessity a limitation on the legis- 
lative power of Parliament of precisely the character 
we have imputed. 

" The extensive power " says the Judge, ^' granted 
by the Legislature to His Majesty, to make articles of 
war, is limited to the making of articles for the better 
government of his forces." " Better," that is, we re- 
join, than it was thought could be devised by the Le- 
gislature, for the remission to him of the power to do 
so, though called a " grant," is a plain admission of '.s 
own inability ; " and " continues the Judge, " they 
can extend to no other cases than such as are thought," 
by him of course, " necessary for the regularity and 
due composition of the army." 

This regularity of the army is the result of its better 
government, and this due composition of it is the plan, 
or due arrangement of the parts, by which such gov- 
ernment is administered ; and the whole clause, there- 
fore, may be rendered thus, " the articles of war which 



21 



the King has power to make can extend to no other 
cases than he thinks necessary for the government of 
the army." If this be limitation, what is not so ? 

It being clear then, to our judgment, that in the Bri- 
tish system it is not the King's power to govern or con- 
trol the army which is limited, we shall proceed to 
show further, from the Judge's view, that it is the Par- 
liament's power in that respect which, by its own ad- 
mission, is so. After stating that " breaches of military 
duty are in many instances strictly defined, in all cases 
where a capital punishment is to be inflicted,'" he pro- 
ceeds to say, " in other instances, when the degree of 
offence may vary exceedingly, it may be necessary to 
give discretion with regard to the punishment" to the 
King of course in his articles. Why, we ask, was it 
conceived to be necessary to give this discretion ? — 
What is meant by the degree ot off"ence varying so ex- 
ceedingly in these instances ? And why is it that, " in 
some cases," as he goes on to say, " it is impossible 
more strictly to mark," define " the crime, than to call 
it a neglect of discipline ?" The one answer to all these 
questions is this, that that portion of the military con- 
trol which consists in directing the martial services of 
the army resides, and must of necessity reside, in the 
King as commander in chief; and the classes of offen- 
ces here referred to consist of violations or neglects of 
his orders, and those of his subordinate commanders. 
As these could not be foreseen, even by him or them, 
much less by Parliament, it was evidently impossible 
more strictly to define the crime of violating them, than 
to call it a neglect of discipline. 

The inability thus practically confessed by the Par- 
liament (and conceded by the Judge) to designate and 



22 



define these last mentioned offences so obscurely ad- 
verted tOj may be taken as prima facie evidence that so 
far it had undertaken a function which cannot, in its 
nature, belong to it ; and surely thus to call in the ad- 
vice and aid of the Crown, supposed from its martial 
capacity to be able to afford them, in order through its 
pretendedly subordinate " articles of war " to enact re- 
straints on its own power, implies at least that sort of 
defect which attaches to legislating in a circle. 

So far then, at least, the power of Parliament is re- 
stricted, while that of the King is unrestrained, in the 
legislative control of the army. But our proposition is 
even broader than this, and we proceed to support it. 

The line of distinction sought to be drawn by Samu- 
el and by the Judge, between the higher description 
of military offences, and those of a minor sort, as mark- 
ing the boundary between the legislative powers of the 
Parliament and the King, will be found on examination 
altogether illusive, and the attempt to establish it by a 
clear process of definition, as fruitless as the labors of 
him who would mark the chord of the rainbow. Gen- 
eral and specific, greater and lesser, higher and lower, 
are terms of significant import enough when applied to 
subjects on which a regular classification has taken 
place, but are destitute of clear meaning in all others. 
Though mutiny iiself, from the enormity of which the 
act to guard against all military offences seems to have 
derived its name, may perhaps be sufficiently distin- 
guished from all others, yet is it far from maintaining 
at all times that superlative degree of offensiveness 
which is apt in idea to attach to it. It is perhaps sus- 
ceptible of no better or other definition than a resist- 
ance of lawful military authority. It may have degrees 



23 



of aggravation, rendering it eminently deserving of 
death, according to the circumstances attending, or the 
critical conjuncture, of its commitment ; but it may 
also have degrees of palliation which would make poli- 
cy as well as humanity start back from the application 
of a penalty destroying life and reputation together. In 
its lowest degrees it may come so near to its very oppo- 
site (lawful resistance of unlawful authority) distin- 
guishable merely by an error of judgment in the delin- 
quent, that it may be doubtful in a moral point of view 
whether, while he must be punished with death for his 
unmilitary act, he ought not the rather to be applauded 
for his patriotic intention. But leaving all this out of 
view, what constitutes, it would seem, the true distinc- 
tion between mutiny and all other military offences is, 
that it is a resistance of lawful authority, instead of be 
ing merely a disobedience of it. 

But by the mutiny act " any disohedience of lawful 
authority " may also be punished with death ! Of what 
then does the minor list of military offences, to which 
that punishment shall not extend, consist ? What that 
list to which the Parliament not condescending, or not 
being able, to define, the King is confessed by the mu- 
tiny act competent of himself to legislate for ? Can 
there be a military offence which is not in some way 
or other a disobedience of lawful authority ? Certainly 
not, we think, since all military duty, active or passive, 
proceeds from such authority expressed in form of law 
or regulation, or the orders of superiors. What is the 
result ? This, that the Parliament can indeed define 
by its mutiny act offences to which the penalty of death 
may attach, but consistently with the present vicious 
military system, cannot define those to which it may 



24 



not. Is it not a strict corollary then, that the power of 
Parliament, instead of controlling the King in the gov- 
ernment of the army, has only been employed — we 
speak of the principle,. not of the practice — in clearing 
the way for his unlimited legislation ? A few reflec- 
tions more, embracing other points, will place this be- 
yond a doubt. 

As rules of conduct prescribed by the supreme pow- 
er in a State, the words of the laws belong to their very 
essence, and the authority, therefore, which shall be 
admitted to possess the right to change their language 
or add to it, is that in effect to which the law-making 
power attaches to the extent at least of such admission. 
The authority, also, which may interpret a doubtful 
statute is of necessity co-equal with that from which 
it emanates ; taking the place of t-he latter in reference 
to such statute, which accordingly cannot be differently 
interpreted by it, though it may be replaced by another. 
The law-making power is legislative, the law-execut- 
ing power is executive, and the law-judging or con- 
struing power is judiciary, by whomsoever exercised. 
The separate investment of these three departments of 
power, so far as may be, in different and co-ordinate 
hands, is most favorable to the liberties of the govern- 
ed. Their union in the same hands is least so, and 
when unnecessary may be denounced as despotic. 

Now the power admitted to reside in the King of de- 
fining the general language of the mutiny act, and the 
other power confirmed to him by it of designating other 
acts and omissions as offences is, the former indirect, 
the latter direct, legislative power ; add to these the un- 
doubted and natural power in him of carrying them into 
execution, together with the power of approving and 



25 

disapproving the judgments and sentences of courts 
martial, (the dependent creatures of his will too,) and 
you have in him a full union, for most of the purposes 
affecting the army, of the three powers of government, 
a state of things which, being despotic in principle, 
may become so in fact. 

It was probably on account of similar views that Sir 
William Blackstone denounced the military law (so 
called,) after Sir Matthew Hale, *' as in truth and 
reality no law, but something indulged rather than 
allowed as a law ;" and that he described it as " built 
on no settled principles, and entirely arbitrary in its 
decisions." He did not so denounce it, from the 
opinion that any defect existed in the mode and ex- 
tent of its publication, as is charged on him by one 
writer (Tytler) on the subject, nor as Samuel affirms 
merely because "it defines not the crimes which 
it designs to punish, nor the punishments which it 
awards to the crimes, leaving the one and the other too 
much at the discretion of the Executive, and to the 
Judges whom it may appoint;" an opinion which un- 
doubtedly he must have entertained ; but he so denoun- 
ced it mainly because those principles of government 
which guard and perpetuate the liberties of the subject 
are violated, as just shown, in this department of the 
law. Hence his lamentation " that the soldiery should 
be reduced to a state of servitude in the midst of a na- 
tion of freemen ;" for, in common with Sir Ed. Coke, 
he esteemed it as one mark of servitude to have the law 
" concealed," as it is in effect, by vague or indefinite 
language and uncertain punishments, or " precarious " 
as it must be, when its declaration, execution, and con- 
firmation are all vested in the hands of one individual, 
3 



26 



uncontrolled by any other authority, and wliose des- 
potic will in any instance, therefore, may have no bet- 
ter impulse than a heat of passion, or no better guide 
than deliberate cruelty. The candid and uncompro- 
mising language of this eminent commentator is, accord- 
ingly, much better adapted to the subject than that of 
the writer last quoted ; and, so far as it goes, impresses 
the true character of this branch of British law with 
all requisite distinctness ; and thus it is — 

" By the mutiny act, among other things, it is enact- 
ed that, if any officer or soldier shall excite or join any 
mutiny, or knowing of it, shall not give notice to the 
commanding officer ; or shall desert, or list in any other 
regiment, or sleep upon his post, or leave it before he 
is relieved, or hold correspondence with any rebel or 
enemy, or strike or use violence to his superior officer, 
or shall disobey his lawful commands ; such offender 
shall suffer such punishment as a court martial shall 
inflict, though it extend to death itself. However ex- 
pedient (he adds) the most strict regulations may be in 
a time of war, yet in times of peace a little relaxation 
of military rigor would not, one should hope, be pro- 
ductive of much inconvenience. But our mutiny act 
makes no such distinction, for any of the faults above- 
mentioned are equally, at all times, punishable with 
death itself if a court martial shall think proper. This 
discretionary power of the court is, indeed, to be guided 
by the directions of the Crown which, with regard to 
the military offences, has almost an absolute legislative 
power. His Majesty, says the act, may form articles 
of war, and constitute courts martial with power to try 
any crime by such articles, and inflict penalties by sen- 
tence or judgment of the same. A vast and most im- 



27 



portant trust ! An unlimited power to create crimes, 
and annex to them any punishment not extending to 
life or limb. These are indeed forbidden to be inflicted 
except for crimes declared to be so punishable by this 
act, which crimes we have just enumerated, and among 
which we may observe that any disobedience of lawful 
commands is one." 

This will be seen to be truly descriptive and con- 
firmatory of the vicious character we have imputed to 
the British system. Why, then, it may be asked, ar- 
gue at such length for a truth so clearly stated to your 
hands, by an authority whose universal acceptance and 
eminence can impart the stamp of currency to it ? We 
answer, the authority of Sir William Blackstone is, in 
this instance, disputed by the apologists of the existing 
system, the truth of his opinion being either directly 
denied, or else drawn into the shades of doubt by false 
interpretations upon his language ; and this effort is 
supported, in some measure, by opinions from the 
Bench, in which the double aspect ot the statesman and 
the judge, are discernible in the simulated exposition 
of this organic law. But why should this be ? Is there 
want of disposition or power in the British Government, 
in its high minded judiciary especially, to correct what 
is thus wrong, and bring the military system into har- 
mony with the excellent principles on which the con- 
stitution mainly rests ? Neither ; but we think that 
the radical defect involved in that system has never 
been discovered, or not clearly so. The Gorgon knot 
may have been scanned, but has never been untied. 
What hinders that we should try ? Besides, Sir Wil- 
liam Blackstone seems himself to have painfully felt 
the difficulty we have just alluded to ; for his remarks 



28 

will be seen to contain an implied admission that, for 
aught he could perceive, the system must remain sub- 
stantially such as he represents it ; the only mitigation 
he could hope for, and timidly suggest, being a remis- 
sion of its severity in times of profound peace. But we 
shall endeavor to show, before closing our observations^ 
that these revolting features of the system are unneces- 
sary and even injurious to army efficiency whether in 
peace or war, and call loudly on the guardians of liber- 
ty and justice for a radical reform, adapted to the light 
and spirit of the age. Let us go on. 

To the Parliament belongs the power to raise armies 
and to grant or refuse the means of supplying them 
with the necessaries of life and service. But these 
powers in Parliament, which in this point of view is 
indeed omnipotent, virtually includes that of disband- 
ing and reducing it, and, in short, any other which 
that body may choose to assume in the matter. It did 
once assume the power, previously and since resident 
m the King, of commanding the army, relinquishing it 
only on its conviction from experience that it was of a 
nature to be properly exercised only by a single mind. 
But though it relinquished the actual power to com- 
mand, and with it all its own proper powers to govern, 
it has, nevertheless, continued formally to assert a po- 
tential right to control him in both functions. Hence 
the mutiny act, though it contains many rules of a per- 
manent character, referring to army service, found by 
experience to be always compatible with the nature of 
that service, is yet, so far as it pretends to be of con- 
trolling efficacy over his martial command, an empty 
pageant of power replaced, for all practical purposes, 
by the articles of war, regulations and orders. This 



29 



mere assertion of right, on the part of Parliament, and 
the acquiescence in it on the part of the Crown, so 
much insisted on by the apologists of the system, are 
to be rightly regarded in no other light than as an act 
of mutual simulation, by which the actual state of things 
is concealed, and the appearance of a divided power 
given to what actually resides altogether in the King 
as commander in chief; and in this capacity only it is 
important to remark, for however artificially the King's 
relation to the army may be described, still is he neces- 
sarily, as the executive head of the Government, a com- 
ponent part of it, whether he does now, or shall in fu- 
ture, as in times past, command it in person or not. 

That function, always potential in the King, has, 
when not exercised by him, devolved on his next in- 
ferior ofiicer, who is then commander in chief de facto ; 
when death or any other cause shall occur to interrupt 
its exercise by this last, the function in course further 
descends ; and so on without definite limitation, short 
of the whole range of officers, and, we add, without 
any possible qualification or change in its nature or 
exercise. The power to make articles of war, for ex- 
ample, though according to British doctrine attaching 
to the Crown, has become and continued so attached 
for what has been deemed an imperative reason. It at- 
taches to the King in his capacity of commander in 
chief or head of the army, as being a necessary and in- 
separable part oHhat function, not as he is chief of the 
executive branch of the British Govornment , for then 
it would naturally and of course be exercised by the 
Legislature itself. 

What the King, as commander in chief, must in the 
nature of things be to the army at large, such each com- 
3* 



30 

mander of a separate part of it must also be, for the same 
reason of necessity to such part, when removed with- 
out the sphere of his actual control. If, therefore, the 
King in that capacity must exercise legislative, execu- 
tive, and judicial functions in his wide sphere, so also 
must every such separate commander in his. But ac- 
tually, this almost absolute power does not universally 
attach to such separate commanders. That it descends 
at all would be sufficient to bear out the assertion on 
British doctrine that it should descend entirely ; and 
that it is actually separated at all from the function of 
such commanders, is sufficient to prove that it is, so far 
at least, separable from his power also. 

With exceptions, then, artificially and inconsistently 
created, the authority of military officers in the British 
system comprises in principle, and partly too in fact, 
legislative, executive, and judiciary powers, in relation 
to all the ends, primary and subordinate, of the army 
institution : that of combat with an enemy, that of good 
order as a separate and peculiar society, that of disci- 
pline and restraint over the licentious conduct of its 
members, by which the peace and safety of the civil 
commvmity are jeopardied ; that of procuring and sup- 
plying, within the limits of parliamentary appropria- 
tions, the means of support and service, and so forth ; 
and these various powers, in the instance of the King 
over all, and of other officers over their respective com- 
mands, imply, on the principle that to him of whom an 
end is required, the means are to be allowed, corres- 
ponding obligations of duty and obedience. This again 
requires a corresponding control over, and arrangement 
of, all the persons in any way connected with the per- 
formance of these functions, and consequently doctrines 



31 

of rank and command, applicable to and inclusive of 
them all, which are artificial and heterogeneous to ex- 
cess. 

In truth, there is but one function, attaching to the 
King as the head of the army, which requires in him 
other than the single and common executive power ^ 
properly so called ; and what in this instance is, and 
must be, absolute power over its subjects, is the strong- 
est argument that can be offered, why the paramount 
power of Parliament should be most jealously exercis- 
ed in circumscribing it within the narrowest limits, that 
may be compatible with the transcendently important 
end for which he must remain invested with it. In 
this respect, Parliament may be considered as occupy- 
ing that narrow isthmus of precaution, between the 
danger to the liberties of the nation from foreign force 
on the one hand, against which it is necessary to pro- 
vide by the investment of dictatorial powers in the com- 
mander in chief over the army, and the similar though 
less imminent danger, on the other, from its own army 
thus absolutely controlled by its military commanders. 

In what attributes and functions this martial com- 
mand properly consists, will be shown, and the line of 
demarcation drawn between it, and that government of 
the army now exercised by the King through his arti- 
cles of war and orders, which, like any other portion 
of legislative power, should be exercised by the Parli- 
ament. Passing from this general view of the British 
system, however, to a more particular examination of 
our own, we shall exhibit that distinction in immediate 
connexion with the latter. 



32 



SECTION III. 

Notwithstanding our propensity to copy the Bri- 
tish legal systems, and the fact that the National Legis- 
lature, in regard to the military establishment, have 
done so with a fidelity almost servile, the framers of our 
Government did not fail to detect the anomalous char- 
acter of the double legislation described, the vicious- 
ness of its principle, and the figment by which the 
identity, in most respects, of the two codes was made, 
by a sort of political refraction, to assume the appear- 
ance of different, tho' assimilated, streams of supreme 
power. Accordingly, the mutiny act, in its distinctive 
character as such, was left entirely out of our constitu- 
tional military system. Judging, too, from the provi- 
sions of the constitution, its framers were very success- 
ful in tracing the distinction between those powers 
which are indispensable to the commander in chief, and 
those which might, and therefore should be, retained 
by the civil government ; for, while to the President 
alone is given the power of commanding in chief, that 
of making "articles of war " was deemed to constitute 
no part of the function, it being clearly embraced, and 
so in practice taken to be, in the congressional one of 
'' making rules for the government of the land and na- 
val forces." This particular difference between our 
own system, and the British, is the more worthy of no- 
tice, because that power is virtually confessed by the 
Parliament to be one which, from its nature, cannot be 
adequately exercised by the legislative branch. The 
more correct conception of the matter in our system, as 
it will ultimately be shown to be, is probably ascribable 
to the fact that, among the framers of the constitution 



33 



were those who united the talents and experience of 
soldiers to those of statesmen, and who were thereby 
enabled clearly to distinguish, and rightfully to feel, 
what was necessary to guard the liberties of the nation 
from foreign force on the one hand, and the possible 
perfidy and licentiousness of its own military establish- 
ment on the other. 

Nevertheless, we have now to remark, that our Na- 
tional Legislature have unhappily contrived to place 
our military establishment on a similar footing, in this 
respect, with the British. In other words, have based 
it on the same vicious principle of a double exercise of 
the supreme power in the control of it, relatively to all 
the ends, primary and subordinate, of its institution, by 
Congress and by the President, 

This is seen in relation to the primary end " martial 
service," by the interference of the Legislature in func- 
tions strictly belonging, and exclusively so, to the Pre- 
sident as commander in chief, of which numerous in- 
stances can be selected from the statute book, such as 
expressly making it lawful for him to employ the troops 
in the fortifications of the United States ; thereby im- 
plying that, without such authority, it would not be 
so : authorizing him to cause certain corps to be em- 
ployed in the fields, on the frontiers, or in the garri- 
sons, as he shall deem consistent with the public ser- 
vice ; thereby implying that the command in chief of 
the army was in Congress, and could be exercised by 
the President only in virtue of such delegated author- 
ity : expressly enacting that a regiment to be raised 
should be considered as part of the military establish- 
ment ; and declaring that, by virtue of the same act, it 
should be commanded by the President ; implying that, 



34 



without these provisions, it would neither have formed 
part of the army, nor have been under his autho- 
rity as commander in chief. Interfering with the mar- 
tial or service formation of the army, by enacting that 
officers with the rank of brigadier general and major 
general shall command brigades and divisions, subject- 
ing these arrangements to be varied by the President ; 
thereby implying that he had not a full right of himself, 
as " commander in chief," to make and change these 
and similar arrangements, though vital to the very ex- 
ercise of that function ; and, furthermore, intimating 
the existence of a power in Congress to control the very 
formation of the troops in the field of battle. Exempt- 
ing certain officers from certain military duties, unless 
specially ordered by the President ; thus interfering 
with the manner of his command, as exercised by him- 
self personally ; arresting, too, the descent of the entire 
function to his subordinate commanders, and thus de- 
stroying the unity of the military command. Author- 
izing his inferior officers to give furloughs to non-com- 
missioned officers and soldiers in such numbers, and 
for so long a time, as they shall judge to be most con- 
sistent with the good of the service ; thereby abridging 
his military command, both as it respects the discretion- 
ary function of it, and the persons by and over whom 
it is to be exercised. Authorizing certain descriptions 
of officers to take post and command in certain cases ; 
that is to say, as of right, and independently of the Pre- 
sident. Empowering his inferior officers to appoint 
courts martial when, in their judgment, necessary; 
thereby likewise impairing his command in its essence, 
and in its operation over them and the members of such 
courts. Enacting that " a commander of the army of 



35 

of the United States " shall be appointed and commis- 
sioned by the style of " General of the armies of the 
United States," these being descriptive of the constitu- 
tional and, therefore, unalienable function of the Presi- 
dent. His power has, in like manner, been impaired by 
implication or in fact, and changed and hindered in many 
other particulars by Congress ; of all which acts and 
doings it may be remarked, to say no more of them 
here, that they are instances of participation by Con- 
gress, in the powder of the President, to command in 
chief. 

While Congress have thus by law participated in 
the power of martial command, impairing its necessary 
functions, restricting its rightful province, and inter- 
fering with the duties and obligations of its officers, who 
are the exclusive agents of the President for this pur- 
pose ; he, on the other hand, by affecting the power of 
making " regulations," has shared with that body in its 
exclusive power of governing and regulating the army. 
The existing code of regulations is the full proof of 
this statement, and it bears, in many particulars, the 
same relation to the articles of war in our system, as 
the code under this latter name bears to the mutiny 
act under the British system : changing, extending, or 
restricting the provisions of the laws, in many instan- 
ces> by the process of constructive paraphrases ; and 
containing many provisions emanating from the Presi- 
dent alone, for the government and regulation of the 
army collectively, and of all the individuals belonging 
and attached to it, in all their various functions. 

If any proposition within the compass of our politi- 
cal system is susceptible of rigid demonstration, this 
certainly would seem to be such ; that it is not within 



36 



the competency of either department of this Govern* 
ment to forego, or delegate to any other, a function 
confided by the Constitution to itself; yet these very 
regulations, to say nothing of the other particulars to 
which we have referred, have been made by the Pre- 
sident, promulgated and enforced by him, not only with 
the connivance, but with the implied and even the ex- 
press, sanction of Congress, without having passed the 
ordeal of its own legislative action. 

To the American President then, in like manner, tho' 
not to the same extent, as to the British King, in his in- 
dependent capacity of commander in chief, has been ex- 
pressly or virtually conceded, powers of a legislative- 
executive, and we may add, tho' we have forborne, for a 
special reason, to give instances of this, a judicial kind, 
in relation to all the ends of the array institution ; and 
by the American Congress have been assumed, with like 
impropriety, powers of a martial character belonging 
exclusively to him ; and, therefore, the like consequen- 
ces, as to the organization, government, and command 
of the military force, roust follow, as we have adverted 
to in the British system ; the same vicious principle 
being found in both. What wonder, then, that the 
following confused and contradictory view of the con- 
stitutional powers under consideration should have 
been given. 

" The manner of employment of the army," says Mr. 
Rawle, in his commentary on the Constitution, " may 
be directed by Congress, or confided to the President ; 
Congress may direct when and where forts shall be 
built ; may also prescribe that they shall be garrisoned 
either with specific numbers, or with such a number 
as the President may think proper ; so, in times of 



37 



•peace, troops may be stationed by Congress in particu- 
lar parts of the United States, having a view either to 
their health and easy subsistence, or to the security of 
distant and frontier stations. But during the emergen- 
cies of a war, when the defence of the country is cast 
on the President, and dangers not foreseen may require 
measures of defence not provided for, the President 
would certainly be justified in preferring the execu- 
tion of his constitutional duties to the literal obedience 
of a law, the original object of which was of less vital 
importance than that created by the exigencies of the 
moment ; and there can be no doubt that this neces- 
sary power would extend to the erecting of new for- 
tresses, and to the abandoning those erected by the 
order of Congress, as well as to the concentration, di- 
vision, and other local employment of the troops which, 
in his judgment, or that of the officers under his com- 
mand, became expedient from circumstances. This," 
he adds, " would not be a violation of the rules laid 
down in the preceding pages, (of his book,) since the 
obligation of the law is lost in the succession of causes 
that prevent its operation, and the Constitution itself 
may be considered as thus superceding it." 

Comment on such views might well be deemed su- 
perfluous ; yet it may not be amiss to remark, that they 
have evidently been deduced from the vicious legisla- 
tive practices we have so partially exposed and denoun- 
ced, and not at all from the letter or spirit of the Con- 
stitution itself; and, therefore, the reflections of the 
reader may be profitably employed in contemplating 
the poisonous eff'ects, on the fountain of our public li- 
berties, which have thus resulted from the vicious 
rinciples of a double exercise of the supreme power 
4 



38 

in the control of the army, and which effects time may 
confirm beyond remedy. By this view it appears, 

1. That Congress commands the army as a matter of 
course, and may, and therefore may not confide it to 
the President ! 

2. That, nevertheless, in times of war, " when the 
defence of the country is cast on the President," he 
may, in opposition to Congress, assume or usurp ! his 
constitutional power to command the military forces ! 

3. That, accordingly, he mny judge and decide that 
the object of a law, made for his government, is of less 
vital importance than such power in himself, and may 
therefore, of his own will, set it aside and assume the 
dictation ! 

4. That, in so doing, he may also undo all that Con- 
gress had done, and had and have the right to do, in 
the building and garrisoning of fortifications, in the 
abandoning and destroying them, and in the concentra- 
tion, division, and other local employment of the 
troops ! 

5. That these powers devolve, also, upon his subor- 
dinate military officers whenever, in their judgment, it 
becomes expedient to exercise them ! And 

6. Lastly, and generally, that the obligation of laws, 
governing the military establishment, may be lost in 
the succession of causes that prevent their operation ; 
of which, in these cases, the President and his military 
officers, the very subjects of those laws, are to judge ! 

The proximate cause of this jumble of powers, equal- 
ly in our existing system and that of the British Na- 
tion, from which we have copied it, is, that what is 
peculiar and essential to the power of commanding the 
army in chief, or, rather, commanding it at all, has not 



39 

been distinguished from those particulars which are 
concerned in the government and regulation of it, and 
which might be in both, and, by our Constitution, we 
contend are, by its letter and its spirit, required to be 
separated from it. 

That instrument expressly, and even pointedly, pro- 
vides " that Congress shall have power to make rules 
for the government and regulation of the land and na- 
val forces;" and, also, "that the President shall be 
commander in chief of the army and navy of the United 
States, and of the militia of the several States, when 
called into the actual service of the United States." 
These provisions, taken in the common acceptation of 
their language, do indeed cover the same ground ; for 
to make rules is to rule, govern, or command; and to 
command, is to govern, rule, or make rules. But who, 
for an instant, would suppose that it was the intention 
either of the framers or adopters of the Constitution to 
sanction the monstrous policy of a double exercise of 
the supreme power, in relation to the same ends ? 
What is there in that instrument, formed under such 
auspices as it was, and admired as it is for its wisdom, 
analogous to so suicidal a purpose ? For the very rea- 
son that these expressions, taken in this vague sense, 
are synonimous, they must not be so taken ; but, on 
the contrary, special acceptations, corresponding to the 
special, the technical objects in view, must be attached 
to them. That the Constitution, like any other law, is 
to be so construed as to avoid absurdity, and give effect 
to one and all of its provisions, is a principle of right, 
reason, and common sense, which will find ready ad- 
mission to every judgment. Yet, strange as is the fact, 
such it nevertheless is, that it has never been so con- 



40 



strued in these particulars. These two powers, from 
a difficulty or inability in discriminating between them, 
have been left without definite boundaries ; and though 
it has happened that each has retained a peculiar sphere 
of operation, resulting from the more obvious features 
of their distinction, they have reciprocally encroached 
upon each other's natural province. This is the true 
cause of those difficulties in rank and command, and of 
those controversies in respect to them, which have so 
long agitated the service, and impaired its efficiency 
and harmony. To this is to be traced that patchwork 
scheme of organization and government, which the laws 
and the regulations, or institutes, of the army of neces- 
sity exhibit ; and to this is to be referred the astound- 
ing fact that the Congress of the United States did, in 
the year 1821, enact, without examination and discus- 
sion, an octavo volume of closely printed laws, affect- 
ing the liberties and lives of their fellow citizens of the 
militia and regular land forces, then or thereafter to be 
in the national service, prepared to their hands by the 
commander in chief ! and, further, that that command- 
er in chief, after Congress had withdrawn the sanction 
so inconsiderately given, did, in this republican coun- 
try, publish those same laws, in the words and figures 
following : " War Department, March 1, 1825, Orders. 
The following General Regulations for the army, hav- 
ing received the sanction of the President, he commands 
that they be published, for the government of all con- 
cerned, and that they be strictly observed. Nothing 
contrary to the tenor of the said regulations will be en- 
joined on any portion of the United States' forces by 
any commander whatsoever!" Would the monarch 
on the British throne have dared to exercise such for- 
bidden power ? 



41 

More, much more, might be advanced, to show the 
necessity of defining with precision the distinct natures 
and provinces of the two powers in question ; but this 
will suffice. 

SECTION IV. 

The power of commanding in chief, in its political 
aspect, or in its relation to the supreme power of the 
State, is set forth in the following extract from the able 
commentaries on the Constitution by Chancellor Kent ; 
speaking of the Executive Department, or President, 
he says, " the command and application of the public 
force to execute the laws, maintain peace, and resist 
foreign invasion, are powers so obviously of an execu- 
tive nature, and require the exercise of qualities so 
characteristical of this department, that they have al- 
ways been exclusively appropriated to it by every 
well organized Government upon earth. In no in- 
stance, perhaps, did the enlightened understanding of 
Hume discover less acquaintance with the practical 
science of government, than when he gave the direc- 
tion of the army and navy, as well as all the other ex- 
ecutive powers, to one hundred senators, in his plan 
of a perfect commonwealth." 

Let us briefly review this doctrine.- The qualities 
here referred to, as characteristic of the Executive de- 
partment, are unity, secresy, enterprise, energy, and 
dispatch ; and these do certainly no less characterize 
military command. It is, therefore, as apparent that 
the Executive department, or President, is the proper 
repository of the power, as it is certain that the Con- 
stitution has so disposed of it, in terms of most unequi- 
vocal import. But before we admit its being a power 
4^ 



42 



of an " executive nature," we must learn distinctly 
what is to be understood by this phrase, or by those 
with which doubtless it is convertible, "executive 
power " or " executive authority ;" for, when the sub- 
ject of our reflections is in any degree removed from 
particular things, we necessarily conduct our reason- 
ings through the medium of words, as the signs of our 
thoughts, as we do with figures and algebraic signs in 
mathematical investigations. The more abstract the 
subject matter of our conceptions, the more necessity 
is there for precision in the signs we employ, both as 
they affect our own conclusions, and the clear convey- 
ance of them to other minds. 

There are, then, two very different senses in which 
the phrase " executive power " is employed. In the 
one, it denotes the power to execute the laws ; in the 
other, the power exercised by the Executive depart- 
ment. According to the first, it is said " the natural 
province of the Executive magistrate is to execute the 
laws, as it is that of the Legislature to make laws. All 
his acts, therefore, properly executive, musT presup- 
pose the existence of the laws to be executed." Con- 
formably to the latter sense is the view given in 
the Federalist, of a special power — that of making 
treaties, namely, '• though several writers on the sub- 
ject of government place this power in the class of 
executive authorities, yet this is evidently an arbitrary 
disposition. For, if we carefully attend to its opera- 
tion, it will be found to partake more of the legislative 
than of the executive character, though it does not 
seem strictly to fall within the definitions of either of 
them. The essence of the legislative authority is to 
enact laws, or, in other words, to prescribe rules for 



43 



the regulation of the society ; while the execution of 
the laws, and the employment of the common strength, 
either for this purpose, or for the common defence^ 
seem to comprise all the functions of the Executive 
magistrate." 

Supposing these examples sufficiently illustrative of 
the two senses of the phrase, we might without more 
ado directly infer that the command in chief is not an 
executiv^e power in the first, proper, or natural sense ; 
but to give more effect to the inference, we shall con- 
nect it in a contrast with that sense, as follows : "The 
object,'' says Chancellor Kent, " of this department, is 
the execution of laws; and good policy requires that 
it should be organized in the mode best calculated to 
attain that end with precision and fidelity ; when the 
laws are duly made and promulgated, they only remain 
to be executed. No discretion is submitted to the 
executive office." Had he commenced this remark by 
saying — " the main object," then the statement in re- 
ference to such object would have been strictly true. 
But taking it as it stands, we may ask, when was ever 
a fleet or an army commanded, without so necessary a 
faculty in its chief as discretion ? and when by direc- 
tion of law ? But, possibly it may be replied, that Con- 
gress, in its declaration of war, does in fact or effect 
pass a law, and thereby devolve on the President the 
duty of carrying it into execution. This is true ; but 
only so far as commanding is not concerned ; for the 
argument which should include this power among acts 
of the President merely and properly executive, that 
is, in the first sense of the phrase, would be false by 
proving too much. It would equally prove the legis- 
lative and judiciary departments and powers to be also 



44 



executive in the same sense, for that power devolves 
on him expressly and directly from the common legis- 
lative master of all three, namely, the People, by vir- 
tue of the Constitution itself. It devolves on him, too, 
disconnectedly from such declaration of war, that is, 
whenever an army or navy, or a fragment of either, 
exists ; whenever, also, any portion of the militia is 
called into the national service ; whenever a domestic 
insurrection is to be suppressed ; and, in either case, 
whether in time of peace or war. Now, then, we con- 
clude, with all possible emphasis, that this power is 
not an executive power in the first or natural sense of 
the phrase. It follows that it can be a power of an 
''executive nature " only by reference lo the qualities 
of the department which are essential to the full exer- 
cise of it ; that is, both in the direction a.nd the execu- 
tion. 

It follows, too, that in a despotic Government every 
power may as well, in this last sense, be included un- 
der this phrase. Even in Governments far from des- 
potic, such as the British, though less free than our 
own, we accordingly find, not only the power under 
consideration, but those of declaring war, granting let- 
ters of marque and reprisal, making rules for the govern- 
ment and regulation of armies and navies in all their 
relations of service and government, and so forth, enu- 
merated among the executive powers ; and we find, in 
the administration of our own, the imputed strong pro- 
pensity to imitate British examples, in the full exer- 
cise of this last named power by the Presidentj in the 
very face of the Constitution which vests it in Con- 
gress. 

While the President's power of commanding in 



45 



chief is executive only in the sense just assigned to it, 
it would seem that Congress was disposed to make re- 
prisals on it, by way of compensation for the loss of its 
own power just referred to, by treating it as an execu- 
tive power in the other sense of the phrase. Of this 
propensity, having likewise a British example in the 
mutiny act, we have given instances enough, and it 
only remains to say, that it will prove in the hands of 
our Legislature, as in theirs, a barren sceptre. These 
mutual mistakes, for in fact they are nothing else, do 
not proceed so much from any inherent ambiguity in 
the phrase in question, as from a political prejudice 
which precludes the consideration of its two distinct- 
ive senses. To this we will now turn our attention 
briefly. 

In the minds of writers on the subject of government 
there seems to be an insuperable necessity of moulding 
all its powers into the tripartite form of legislative, ex- 
ecutive, and judicial powers ; of grouping them all, 
however various their nature and essence, under these 
three, as it were, cabalistic names ; as if such powers, 
fo^ example, as those of appointing to office, preferring 
impeachments, trying them, forming treaties, command- 
ing the military forces, and so forth, which confessedly 
cannot be included under the proper definitions of ei- 
ther of those powers, could not be called by some other 
name. The mischief of this false apprehension is seen, 
at last, in inconsistent and vicious legislation, generat- 
ed through confusion of thought ; and the reader will 
have noticed the confused intermixture of the two sen- 
ses of the phrase, " executive power," in the quotation 
from the Federalist, even in the very act of giving its 
essential and natural meaning, or strict definition. 



46 

While it is said the essence of the legislative power is 
to enact laws, the executive, so far from being defined 
simply by the corresponding function of executing 
them, cannot in the mind of the writer there be describ- 
ed, but by availing himself of a reference, (such is the 
influence of this propensity,) to the qualities of the Ex- 
ecutive department, so as to " comprise all the func- 
tions of the executive magistrate." 

Though in the natural senses of the terms, all legis- 
lative powers be vested by the Constitution in Con- 
gress, all executive in the President, and all judicial 
in the Supreme Court, it does not therefrom follow 
that all the powers they respectively or jointly exercise 
must be of one or other of these descriptions. It has 
been very conclusively shown that these three depart- 
ments, or branches of Government^ cannot be entirely 
separate from, and be deemed independent of, each 
other, in regard to the powers they are to exercise ; 
but it by no means results that the powers themselves 
should be blended, their definitions be lost, and their 
distinctive nature be overlooked. We may still view 
them abstractedly from the department which exercises 
them, and dissociated from all other powers. It is the 
more important to do so for the reason alleged, that 
our language and reasoning will participate the con- 
fusion with which our conceptions may be clouded. 
This, accordingly, we propose to do with the power of 
^^ commanding in chief." 

Of executive power, we have just shown two very 
distinct sorts, namely, the power of executing the laws, 
and the other power exercised by the Executive de- 
partment. We have shown that the power of com- 
manding in chief belongs not to the former, but to the 



47 

latter branch. This was shown by a slight reference 
to the nature of the power and to the language of the 
Constitution. This opposing prejudice, however, is 
too strongly fixed to be thus dislodged. It must be 
eradicated. 

The supreme power of a State consists of willing 
and doing. These two parts are clearly distinguisha- 
ble in thought. Are they separable in practice ? No 
and yes. They are not separable, because willing with- 
out doing is a palpable nullity, and doing without will- 
ing is a plain impossibility. They are separable, be- 
cause they are separated in the instance of the legisla- 
tive and executive powers concerned in the adminis- 
tration of the laws. What is the necessary conclusion 
from this short argument ? That the executive power 
here meaiit is, unquestionably, subordinate to the le- 
gislative, and that the Executive department, in so far 
as the laws are concerned, is also subordinate to the 
Legislature. So far we say, for, in other respects, 
both the executive power and department are co-ordi- 
nate with the legislative. It follows, conclusively, that 
the President, as commander in chief, is independent 
of legislative control in the exercise of that function. 
We are careful in this language. We do not mean by 
it that even in that capacity he is entirely independent 
of the legislative department. This distinction is of 
very significant import, as will be shown hereafter. 

The instances given of vicious law, on the one hand, 
not only show a disregard of the two distinctive senses 
of executive power, but evince an extremely vague 
and imperfect apprehension of the essential nature of 
military command; while the instances given, on the 
other, of invalid regulation, show an equal misconcep- 



48 



tion of the true province of the power of commanding 
in chief. This will be our sufficient apology for the 
following rationale of military command, and general 
description of martial service. 

To produce concert of action in a body of men for 
any purpose, a common will is necessary, to which all 
agree to submit. This principle is the foundation of 
all government. When time, place, and other condi- 
tions allow of it, this common will may be the result of 
the sentiment of the majority, or of the major will, of a 
previously selected portion, as of the Legislature in a 
civil Government. But in an army, the common will 
or authority (to give it another name) for martial ser- 
vice, or contest with an enemy, cannot, from the na- 
ture of that service, result in either of these Avays, for 
this reason, among others equally cogent and conclu- 
sive, that emergencies would not allow the time to 
ascertain it. Hence the necessity of previously vesting 
it in some individual, who thus becomes the leader, or 
'^ commander." But the authority in him would be 
almost nugatory, notwithstanding its unlimited sway, 
and its intrinsic full power, if an arrangement were 
not made of the numerous persons on whom it is to 
operate, so as to enable him to reach and address any 
individual, and any proportion and description of the 
whole body, in order to control their services in such 
manner as might, in his judgment, be necessary. This 
arrangement must consist of a primary distinction of 
the whole body into two classes ; officers^ in whom, as 
his agents, he may, at his discretion, repose authority 
to exercise command subordinate \^ his own; and/)H- 
vates, whose sole duty will consist in obedience of such, 
either as exercised directly by himself, or through such 



49 

officers. The necessity, also, of this arrangement is 
self-evident, for ubiquity alone could enable him to 
dispense with it. 

These officers are in all strictness his agents, in re- 
lation to this martial service, and must, therefore, de- 
rive all their authority in this regard from him alone. 
They might, also, derive their appointment from him, 
but this is not necessary ; and, in reference to other 
objects, in view of the supreme power of the State, 
would be highly inexpedient. The source from whence 
his own authority is derived, is also competent to fur- 
nish him with officers, and they are appointed accord- 
ingly by the Government, (under our Constitution,) on 
his nominations. Their appointments or commissions, 
however, confer only an eligibility , not a right, to com- 
mand. 

Tiiere cannot be two wills in an army at the same 
time, in relation to the same end, any more than there 
can be such in the same individual. Double authority 
in the former, like double-mindedness, or insanity, in 
the latter, would equally produce distraction of pur- 
pose and abortive results. Now, as the whole includes 
all its parts, so the commander in chief of the army must 
be the commander of all who belong to it ; and as his 
power extends to the attainment of the ultimate end for 
which it is instituted, so must all other ends and pow- 
ers, purposes and duties, be subordinate. These con- 
siderations, to say nothing of others, disclose in bold 
relief the inviolable principle of military unity, and de- 
monstrate that what was declared by the regulations 
as " the intention of the Government — that there be 
established throughout the army, as one corps, a gra- 
dual and universal subordination or authority " is in 
5 



50 



fact the meaning and necessary construction of the Con- 
stitution itself. 

Such, in relation to the military forces, being the 
essential nature of the President's special power of 
commanding in chief, let us next look at the rightful 
province of its operation. 

SECTION V. 

The event of war presents many objects for the at- 
tainment of which the supreme power of the State is to 
be exerted. Among these, the raising, supporting, and 
commanding the military forces of the nation are pri- 
marily to be noticed. These forces are armies and na- 
vies. The purpose of both is martial service, of the one 
on the land, the other on the ocean. 

Martial service on the land comprises a variety of 
special operations, which are all, however, comprehend- 
ed under two heads, namely, the conduct of a cam- 
paign and that of a battle, or, in technical phrase, stra- 
tegy and (by a false epithet) great tactics ; to which 
are prerequisite a knowledge of topography and of the 
lesser tactics. 

Strategy is defined to be " the science that treats in 
general of the mode of employing troops in the execu- 
tion of a campaign ; that combines and directs the sev- 
eral operations to determinate objects; that anticipates 
lines of march and fields of battle. Strategical move- 
ments are those upon the great lines of march, which 
are the foundation of the operations of a campaign con- 
sidered abstractedly from the manoeuvres of the differ- 
ent arms during the action.'" 

Great tactics is defined " the art of managing and 
combining the various elements of an army, in oider 



51 

to put it in action against an enemy. It is properly 
the art of combat and battles. The movements of great 
tactics are those made during an action, to take advan- 
tages of localities and circumstances of the moment." 

Topography consists in the knowledge of local cir- 
cumstances, and is divided into two departments or de- 
grees, corresponding with strategy and great tactics, 
namely, first, a knowledge of the chief features of a 
country, such as the general form and charater of its 
&ea-coast, its principal water-courses, its great commu- 
nications, its chains of mountains, and so forth ; and, 
second, a minute knowledge of particular localites ; and 
may be called general and minute, or the greater and 
lesser Topography. 

Strategy, as a plan, may be considered as comprising 
the policy of the campaign, based, so far as the ground 
is concerned, on the general topography of the country. 
In its movements it is, together with great tactics, the 
execution of that policy ; this last being based, in like 
manner, on the details of minute topography. 

The lesser tactics are described "as a very elemen- 
tary part of the art of war. They are confined to ma- 
noeuvres and evolutions, without regard to the ground 
or to events. They are the instructions which troops 
ought to have received before they appear in the field 
to execute the movements of the great tactics." 

As martial service at large would be properly de- 
fined a contest with the enemy, and Avould comprehend, 
accordingly, hostilities on both land and water ; so, ob- 
viously, its two general kinds, are army and naval oper- 
ations. Strategy and great tactics, however, are differ- 
ences, not of kind, but of degree ; for the one leads into 
the other, just as general and minute topography do; and 



52 



both relate to the land branch of martial service. They 
would, therefore, be with more consistency called the 
great and lesser tactics ; and what now passes under 
this latter name, " discipline," or, in this connexion, 
" general tactics ;" for, in reality, they are the syste- 
matic compendium of those principles of army move- 
ments, considered in the abstract, which the skill of 
the commander applies in the battle-field to the events 
of the moment, and the localities of the ground; and 
these, in their turn, are based on the constituent parts 
of an army, or those various descriptions of troops or 
arms of service, whose faculties of movement, sphere, 
and manner of service limit alike the operations of great 
tactics and strategy. 

All these arms of service are to be brought to bear 
on the enemy, either for attack or defence, in such re- 
lative proportions, and in such forms of array, as the 
immediate occasion shall require. These proportions 
and forms are also to be changed, at any moment, ac- 
cording to the changing character of the object in view, 
the localities of the field, the plans of the enemy, his 
successes or reverses ; and, in short, the events and 
circumstances of the battle. 

These attacks and defences may take place, not only 
on the field or open country, but in and about fortres- 
ses, on the sea-coast and in the interior, in combat with 
a naval or with an army force, or both. They may 
take place with the army alone, or in combination with 
a naval force ; and may require the building and occu- 
pation, or the destruction and abandonment, of fortifi- 
cations. 

Nor is this all. To a successful contest with the 
enemy, it is essential to make distributions and detach- 



53 

ments of these forces, of whatever kind and in whatev- 
er numbers may be judged proper, to whatever places 
and distances may be indicated by the nature of the 
operations as planned by the commander, or as modi- 
fied by the enemy. 

Hence the composition and resolution, the formation 
and the manoeuvring, the distribution and the concen- 
tration of the military forces, in an enlarged sense, re- 
latively to the general operations of a campaign, or in a 
minute or particular sense, relatively to the immediate 
purposes and incidents of a battle ; in other words, ac- 
cording to the principles of strategy and tactics. These, 
together with all the other operations incidental to them, 
constitute the mai tial service ; and the control of the mi- 
litary forces in all these respects, and under all these 
circumstances, is, therefore, the exclusive province of 
the President's power as commander in chief. 

The proper objects or ends of civil power are of gra- 
dual development, and of a nature, therefore, to be 
foreseen and deliberately provided for ; the objects of 
martial command, on the contrary, are of sudden and 
fortuitous presentment, requiring to be met with the 
greatest promptitude, and with full powers, whether 
counteractive or promotive. In the civil operations of 
society, the subordinate executive officers may conve- 
niently, and without disorder, be made directly amen- 
able for the improper exercise of their functions, thro' 
the courts of law, on the same footing as any other 
class of citizens. The more limited range and fixed 
character of their duties, admit of their being defined 
with precision, so that no discretionary power need be 
confided to them, or to any superior in the control of 

them. No general provision need be made for the suc- 

5* 



54 

cession of one to the station or functions of another ; 
no dangerous emergencies are to be apprehended and 
provided for by the investment of extraordinary pow- 
ers. But in the operations of an army, the reverse of 
all this is true. The civil courts cannot have cogni- 
zance of military offences, because of the itinerant cha- 
racter of the army, and because, instead of being vio- 
lations of standing rules, (so far as the martial service 
is concerned,) of precise and fixed description, they 
are generally violations of special orders, founded on 
passing events, casual and fortuitous. These result 
from the special power of the commander in chief, as 
exercised personally by himself, or through his officers ; 
and the amenability must refer primarily to him, as an 
essential incident of his authority, otherwise the vital 
principle of military unity would be violated. In short, 
without stopping to complete the contrast between this 
and the cjvil power, which is obvious enough, we re- 
mark that the power of martial defence,%of which the 
army is an instrument, must be as active and various, 
as extensive and efficient, as the danger may be ; there 
must be no lack of means, no want of power, no loss 
of time. The enemy must be met by an opponent as 
unencumbered as himself. 

The framers of the Constitution evidently saw the 
military power in this point of view, and regarded it 
as at once a necessary and a dangerous power to the 
civil community. To promote its martial efficiency, 
and, at the same time, to guard against the danger to 
be apprehended from it, was, therefore, the problem of 
liberty to be solved in that bill of delegated rights and 
powers. To secure the former object, it was perceiv- 
ed that the power of command must be wielded at the 



55 

discretion of one mind ; to secure the latter, that that 
discretion should be allowed no latitude beyond the 
necessities of the case. " Of all the cares or concerns 
of Government," says the Federalist, " the direction of 
war most peculiarly demands those qualities which 
distinguish the exercise of power by a single hand ;" 
and elsewhere, " a standing force, therefore, is a dan- 
gerous, at the same time that it may be a necessary, 
provision. On the smallest scale, it has its inconveni- 
ences ; on an extensive scale, its consequences may be 
fatal. On any scale, it is an object of laudable circum- 
spection and precaution." 

The obvious nature of the power of military command 
seems to have been regarded by the framers of the Con- 
stitution as sufficient security that it would not be med- 
dled with, or participated in, by more than a single hand. 
On this branch of the problem, therefore, all that was re- 
quired to be done, in their judgment, was to vest it spe- 
cially in the President. Hence the only provision in this 
respect is, that he " shall be the commander in chief of 
the army and navy of the United States, and of the mi- 
litia of the several States, when called into the actual 
service of the United States." 

Had the Constitution, in giving this power to the 
President, positively enjoined that it should be regard- 
ed and treated as an executive power, on the same 
footing as those which are such in their nature and es- 
sence, (which, for argument sake only, can be suppos- 
ed,) it would have been chargeable with the absurdity 
of destroying the power in the very act of bestowing 
it ; for then it would have been incompatible with the 
first stated object of the framers, or rather expositors, of 
that instrument, the martial efficiency of the army. He 



56 

could not thus command the army, in the proper sense 
of the term, nor could it have possessed those attributes 
of promptitude, energy, enterprise and concert of action, 
without which, however well organized and governed, 
in other respects, it would have been a weak and cum- 
brous machine, totally unfit for the martial purpose for 
which it was created. These attributes, though pos- 
sessed by him as the executive department, could not 
be imparted to the army, because he would not, in 
those circumstances, be acting for himself, but for 
and under the legislature which possesses them not. 
Such an investment in him, indeed, would have been 
merely nominal^ its actual investment would have been 
in the Legislature. " The use and end of this power 
consisting in the unity and indivisibility of its nature, 
the moment it is separated into parts," that is, when 
the willing or directing is by Congress, and the doing 
or executing by the President, " its essence is dissi- 
pated." The power would, therefore, have been lost 
by being virtually in the hands of a department which, 
by its constitution and qualities, is unequal to its man- 
agement. 

Had the Constitution, therefore, forborne to make 
any special disposition of the power, it must have been 
deemed as attaching to the President, by all rational, 
aye, by necessary construction, as an indivisible pow- 
er ; for this Department alone possesses the constitu- 
tion and qualities fitted to its exercise. What would 
thus have taken place in this state of things, by the ob- 
jectionable process of construction, does now take place 
by an express, unequivocal, and substantive provision, 
the wisdom of which is evinced by a consideration of 
the intrinsic nature and necessary province of the 



57 



power, and confirmed by the experience and talents of 
the revolution. 

This power requires in its possessor that he should 
hold a special relation to the military establishment — 
that of being supreme controller of its martial services, 
and relatively to these, of every member thereof. It 
involves other than executive elements, so to speak, 
namely, discretionary and coercive powers, to the full 
extent of that service ; and not merely so, but the right 
to impart that power with all its faculties to his subor- 
dinate commanders, according to his own judgment, 
and to resume it at his own will. 

Both parts of this power, the willing and doing, the 
directive and executive, being thus united in the Pre- 
sident, and possessed by him in the fullest force, may 
be thought to constitute despotic, or at least supreme, 
power, as we have declared to be the case with that 
of the British King. It is, however, to be remarked, 
first, that this power in the President is limited by the 
Constitution, and should be so in fact, to the martial 
service proper, or to those services which bear direct 
relation to fighting the enemy ; whereas the King's 
power extends to all other purposes within the pur- 
view of the military institution ; and next, that, though 
it cann t be intrinsically interfered with, either in re- 
gard to the standing preparation and attitude of the 
power, or its actual exercise, it is potentially control- 
led, or rather kept under watch and guard, by counter 
powers in the Legislature, whose operation, going as 
it were side by side with it, may at any time suspend 
its exercise by disbanding the army, or punish abuses 
of it by the process of impeachment. It is, thereforej 
not despotic. 



58 



Nor is it supreme, though it may truly be said to 
have more of the nature of a supreme power than 
that of Congress ; for this may be checked by the 
President's negative on the passage of its acts, and may, 
in particular instances, be annulled by the Judiciary. 
The reverse is the case of the Piesident's power to 
command ; the duty of obedience, from the exigencies 
of the moment, taking precedence of all other consider- 
ations, that is to say, usually, generally, almost uni- 
versally, for tbe exceptions will be found in those cir- 
cumstances only which infer treason in a perfidious mis- 
application of the public force. What ! it may be said, 
a power partaking more of the supreme than the legis- 
lative has, and yet dependent on the latter for its ex- 
ercise ? Yes, even so ; for what is the supreme pow- 
er ? It is the collective power of the comm.unity ap- 
plied to certain ends by the Government. If what are 
called departments should each exercise distinct and 
separate powers, and be independent of each other, 
then all such powers would be supreme, because the 
departments would then lose their nature, and become 
in fact distinct governments, possessing legislative and 
executive power, including (not judiciary, but) coer- 
cive power. Make them dependent on each other, 
either by a mutual participation in the power for the 
same end, as in the case of the legislative and execu- 
tive departments, in the exercise of the municipal pow- 
er; or make one to exercise an exclusive power only, 
when and while another shall have created and contin- 
ued the occasion for it, as in the case of the Judiciary 
in relation to existing laws, and of the power of the 
commander in chief over the existing military force, 
and the unity of government, in which its essence con- 



69 

sfsts, is maintained. No power of a depaitment can be 
either despotic or supreme, but may be indivisible in 
itself, and, within its defined limits, absolute over the 
subjects of it, and over the means to its end. 

Now, to the British King, in addition to the wide 
province comprehended in his sphere as commander in 
chief, belongs the power as Sovereign to declare war, 
to continue and terminate that state ; and the only con- 
stitutional check on this military prerogative is the 
power in the Parliament to raise, and therefore disband, 
armies and navies, and to grant or refuse the necessary- 
appropriations for their support and service. A little 
reflection suffices to show that this constitutes a very 
inefficacious check ; for, in the exercise of the powers 
he does possess, the King can originate and continue 
the state of war, and the refusal of the Parliament to 
make the requisite appropriations for prosecuting it 
must be attended, either by a dissolution of the gov- 
ernment, or submission to a foreign yoke. So that, virtu- 
ally, the King possesses the ability to originate the oc- 
casion, and consummate the end, of the military power. 
In this respect, then, he is the Government^ and being 
also unaccountable for its exercise or abuse, he is des- 
potic in relation to it. 

On the whole, then, enough we trust has been ad- 
vanced to make evident the true nature of the power of 
" commanding in chief," its proper relation to the other 
powers of the State, and the rightful province of its ope- 
ration. Having been called, we repeat, an " executive 
power," it has been treated as if it were naturally and 
essentially such, that is, subordinate in its exercise to 
the legislative power ; and principles, accordingly, 
have been asserted and practised on in regard to it, ut- 



60 



terly incompatible with its true nature. It can be so 
denominated only in reference to the qualities of unity, 
enterprise, promptitude, and so forth, which distinguish 
the department to which it is, by the express provision 
of the Constitution, and must from its own essential na- 
ture be, fully confided, namely, the President or ex- 
ecutive. It is really an indivisible power, and can on- 
ly be exercised under the direction of one mind, and 
never in form of law. When delegated by the Presi- 
dent, that is to say, when remitted for exercise, to his 
inferior commanders, it goes in its entireness, with all 
its attributes and constituent elements, and can be lim- 
ited in their hands only by the extent of the means, and 
the subordination of the 'special purposes confided to 
them. It is absolute, during the times of its activity, 
over those who are subject to it ; but neither despotic 
nor supreme under our system of Government. 

SECTION VI. 

Having thus, clearly, as we think, placed in its true 
point of view the nature and operation of the Presi- 
dent's power of '^ commanding in chief," it becomes 
our next purpose to consider, in like manner, the na- 
ture and operation of that other power, residing in 
Congress, with which it has been, in no inconsiderable 
measure, confounded in. practice, namely, "to make 
rules for the government and regulation of the army." 

It may be thought, however, that after so much pains 
have been bestowed in developing the former, there 
can remain no sufficient reason for devoting a like de- 
gree of attention to the latter. To this we reply, that, 
from the relation these powers bear to each other, and 
still more from that of the departments to which they 



61 

severally belong, there will always be a tendency, in 
time of war, to extend unduly the martial power; and 
in time of peace, its antagonist, (as we may deem it,) 
the power of military legislation ; and that full secu- 
rity against both evils, judging from the past, is only 
to be found in a full delineation and jealous maintenance 
of both powers. The embankment, to separate these 
waters, should be guarded against abrasion on both 
sides. We have, however, a much stronger and more 
practical reason, for our proceeding, which will dis- 
close itself in its proper place. 

In the institution cf government, it is obvious that 
each individual of the community niakes a sacrifice of 
part of his natural liberty of action, in order thereby 
to enjoy the security in society which he must else fore- 
go. The more iinmediate object, or common province, 
of the siipreme civil power, therefore, is not to give 
impulse and direction to the action of individuals, but 
to res rain them within those bounds which conduce 
to the common interest and welfare. For the most 
part, no positive duties are imposed on the citizen, but 
merely negative ones. He is left to pursue his own 
interest and happiness, and only limited in his conduct, 
so that he shall not interfere with or impair the same 
liberty in others. Accordingly, the Government does 
not usually sanction its laws by rewards, but by pun^ 
ishments. 

There is one striking exception to this view, and 
that is, when the common interest and welfare become 
endangered in a state of war, and require for their pro- 
tection the physical power ot the community. Here 
the supreme power is exerted in inducing and cogrcir^g 
individuals to fulfil, each, his part of the common com- 
6 



62 



pact in a military capacity. It now imposes positive 
duties, as well as negative ones ; in other words, the 
Government now directs individual cond'.jct as well as 
restrains it, and sanctions its laws accordingly by re- 
wm^ds for conforming to them, as well as by punish- 
ments for their violation. 

Military control, in the broadest sense of the phrase^ 
differs therefore from the ordinary or civil control, or 
government, in comprising another elem€7if of power, 
and another sanction. So far as the directive and re- 
straining power is separable from the hands that must 
execute it, it is the natural and proper function of the 
legislative department ; but so far as it is necessarily 
associated with that execution, it must be remitted to 
the executive department. This latter, as already 
shown, constitutes the power of commanding in chief. 
It is at all times to be regarded as a dangerous power 
to the civil government and community, and is there- 
fore " an object of laudable circumspection and precau- 
tion." All other power of military control, comprising 
every thing else in its wide range, is the " government 
and regulation " of the military forces. This is vested 
exclusively in the Legislature ; the President, togeth- 
er with his lineal officers, being in relation to it mere- 
ly the executive department in the natural and subor- 
dinate sense of the term. It is so vested, most especi- 
ally in furtherance of the second object of the framers 
01 the Constitution, namely, to secure the tibei'ties of 
the community Jrom military perfidy and licentious- 
ness. 

That instrument, as the general and fundamental law 
of the land, designates the most general ends in view 
of it, and prescribes the forms in which the supreme 



63 

power for their attainment shall be employed. It also 
designates the special ends, and prescribes the more 
particular forms in which the corresponding special 
powers shall be vested and exercised. This cautious 
policy is pursued as far as consists with the nature of 
those ends, and a wise provision for events and in- 
terests, as they shall arise out of the actual condition 
and circumstances of the community. 

Among the general ends set forth in the Constitution 
is that of pi oviding for the common defence. But this 
is not left entirely to legislative discretion, for the sub- 
ordinate ends are enumerated and variously invested. 
Accordingly, while the power of " commanding in 
chief" is vested in the President, that of declaring 
war, that of granting letters of marque and reprisal, 
that of making rules concerning captures on land or 
water, that of raising and supporting armies, that of 
maintaining and providing a navy, that of providing for 
calling forth the militia, and that of " making rules for 
the government and regulation of the land and naval 
forces,'''^ are vested legislatively in Congress, which 
accordingly may by law direct the manner and means 
for the attainnjent of all these ends. 

This last quoteci power is that to which our attention 
is now to be especially given. If judiciously exercis- 
ed, and faithfully carried into effect, it secures of itself 
the civil government and community from the dangers 
to be apprehended from the military forces. 

Let us glance at the peculiarity of the language by 
which this power in Congress is expressed, as prelim- 
inary to considering the objects in view of it, and the 
proper means of ensuring their complete attainment. 

jGovernment and regulation are terras whose distinc- 



64 



tive imports have been nearly lost, or greatly obscured, 
by the carelessness of usage. That in the minds of the 
framers of the Constitution, however, they were appre- 
hended to have severally a degree of appropriate mean- 
ing, so that common acceptation would conceive a shade 
of difference between them, is fairly to be inferred from 
the use of both terms in an instr ument where tautolo- 
gy is something worse than bad taste. But this shade 
was not a distinct color; this difference of degree was 
not one of kind ; and hence to cover the whole intend- 
ed province of the power, it was deemed necessary to 
employ the terms in a cumulative way, leaving to the 
judgment of the depaitment which was to exercise the 
power, the mode also of adapting the terms. Accord- 
ingly, the government and regulation will bo found 
just equivalent to the restraint and direction of the ar- 
my, to the good order and discipline of it, or to the sin- 
gle word " government," in the enlarged sense, ex- 
plained, in which it expresses the peculiar control of 
the military community. 

As a separate or distinct community, the army, like 
any other, requires a government over it to establish 
justice, and promote the welfare of its members. Con- 
sidered merely in this poitit of view, it would be only 
a part of the general community, and as such might be 
governed under the broad law of the land. But on ac- 
count of the relation it bears to a special purpose, and 
of its itinerant character giowing out of that relation, 
such laws must be so modified, in application to it, and 
to the individuals composing it. as not only not to in- 
terfere with the sure attainment of that purpose, but to 
assist in its efficient prosecution As thus both distinct 
and peculiar, it will be seen to hold a twofold relation 



65 

to the supreme power of the State. First, as good cit- 
izens, its members are bound to observe those rules 
which Congress may establish for the protection of the 
civil community and government from a perfidious em- 
ployment of the military force against the liberties of 
the country, and from ihe licentious conduct of indivi- 
duals of the army. Second, as good soldiers, being 
bound to render martial service to the State, under the 
C3mmand of the President, its m3;nbers are to observe 
(hose rules of discipline and of good order, which Con- 
gress may deem necessary, as the previous means of 
insuring efficiency to that service, and which, at the 
same time, are promotive of their own welfare. 

This we conceive to be the proper province of the 
power in Congress, to " make rules for the government 
and regulation " of the army ; and it is, accordingly, to 
these two ends that the expositors, of the Constitution 
make special reference, and that our articles of war, 
also, which (like those of the British King) bear a close 
resemblance to the mutiny act, are confined. The de- 
sign of that act is thus expounded in the solemn form 
of a judicial decision in the case before refeired to. 

"By the wisdom and providence of Parliament," 
says the Judge, "an at my is established in this coun- 
try, which it is necessary to keep up, the establishment 
being fixed by authority of the Legislature, it is an 
indispensible requisite of the establishment of an army 
that there should be order and discipline kept up in 
that army. This has induced the absolute necessity 
of a mirtitiy act accompanying the army. It is one ob- 
ject of that act to provide for the arm,y ; but there is a 
much greater cause for the existence of a mutiny act, 
and that is, the preservation of the peace and safety of 
6* 



66 



the kingdorriy for there is nothing so dangerous to the 
civil establishment of a State, as a licentious and un- 
disciplined army." 

The " order and discipline " here spoken of are in- 
dispensibly requisite to an army, because they are the 
essential means of promoting the welfare of its mem- 
bers, aod its martial efficiency. They are scarcely less 
requisite for the civil community, as the means of pre- 
serving its peace and safety. These are obvious pro- 
positions. It is therefore as plain that it is the first of 
these effects which is in the contemplation of the first 
stated object of the act " to provide for the army," as 
it is clear, from the coincidence of the lan2;uage itself, 
that the other effect constitutes, in like manner, the 
other object of the act. Order and discipline, then, the 
common means to these two ends, is but another ex- 
pression for the government of an army, comprising, as 
before stated, that additional element (of direction) and 
that additional sanction (of reward) which distinguish- 
es legislation, in regard to it, from the ordinary or- civil. 

On the rules necessary for the " welfare " of the 
members ot the army, we have already made the only 
requisite remark ; on those for the " efficiency " of the 
army, as a body, we would observe that they are such 
as have relation to the personal preparation of its mem- 
bers for rendering good service against the enemy, com- 
prising their accountability for the material means, of 
every description, placed in their hands, the appoint- 
ment of drills, roll calls, musters, inspections, reUirns, 
reports, and so forth, which it would be out of place 
here tediously to specify. 

As to the other object or branch of this power, it may 
be remarked that, in so far as the preservation of the 



67 



peace and safety of the civil government and communi- 
ty are concerned, the duty of the civil authority to re- 
strain the conduct of the army is of such transcendent 
importance as to awaken special wonder that it should 
fail to have secured from the legislative branch that 
pointed attention, and jealous care, which its peculiar 
character so imperatively demands. The legislative 
power, for this purpose, is not only of the highest or- 
der, but of the broadest character. Intended to be used 
for the " common defence," not only against foreign 
armies, but its own, and not only in the defence of the 
liberties of the country, but of its peace and safety 
against military disorders. Congress is, by the provis- 
ions of the Constitution, as unlimited in its means to 
these ends, as it is free in its thoughts lo devise and 
apply them. Referring, then, to the existing features 
of our military organization, and to the source of its ex- 
isting regulations, let us ask, is it to be supposed that 
this vital interest of the nation was to be left, for a mo- 
ment, in the guardianship of the very persons from 
whom alone it was considered to be endangered? Is 
that to be regarded as evincing, on the part of the Le- 
gislature, " a laudable circumspection and precaution " 
in guarding the liberties of the State from military per- 
fidy and licentiousness, which consists in a mere pro- 
mulgatioii oi'lsiw, without retaining in the hands of the 
civil authority, the means of enforcing it? which, in 
fact, relinquishes those means into the hands of those 
it was designed to govern ? Certainly not. Then it 
follows that these means, and the poweis over them, 
should be resumed and exercised by the civil govern- 
ment. What they are, and how this power should be 
exercised, remains to be shown. 



ee 



SECTION VII. 



So habituated are our ideas to the existing system of 
military affairs, so prone are we to the imitation of for- 
eign nations in this particular, without taking the trou- 
ble, or feeling the obligation, to consider the difference 
between their political systems and our own, that any 
innovation must be expected to be repelled by incredu- 
lity and prejudice. Yet, we have one to propose, of no 
inconsideralvle magnitude and importance, and to its 
consideration, therefore, must invoke all the aids of 
candour and common sense. 

By the existing system the agents, by whom the du 
ty of procuring and deliveiingj ov providing^ supplies 
for the army is performed, are called '' the administra- 
tive staff," a!ul regarded as constituting an integral part 
of it. Most of them, also, are invested with military rank; 
yet so that, while they are, on the one hand, prohibited 
the exercise of martial command, the only legitimate 
purpose for which such rank can ever be given ; they 
are, on the other, exempted from obedience to those 
holding a degree ot that rank inferior to their own, as 
the necessary effect of its essential nature already ex- 
plained. Thus they are, most obviously, an extrane- 
ous element, in the midst of that otherwise uniform and 
universal authority and subordination, which is the 
very definiti«.n of military unity, and the basis of mar- 
tial efficiency ; an element which, by no possibility, 
can be made to assimilate with the institution ; and 
whicli, as shown in our introductory remarks, is the 
cause of those confused doctrines of rank and com- 
mand, out of which difficulties of no inconsiderable 
importance to its well-being and efficiency do and 



69 



must arise. These staff agents cannot be considered 
army "officers" on the same footing with others, 
without being drawn away from their proper duties, 
which are vital to the existence and service of the ar- 
my. On the other hand, thoy cannot be deemed "pri- 
vates," without at once degrading them in a personal 
sense, and subjecting their functions to the control of 
any officer however inferior. The footing of all army 
officers must be one and the same, and that is seen in 
their full su!)jection to that universal rule of authority 
and subordination with which these staff agents, de- 
spite of all the ingenious contrivances of assimilated 
and non-assimilated rank, and of chains of subordination 
among themselves, and so forth, cannot be brought into 
accoidance, cannot be brought, as we may say, " into 
line." If, then, they be in fact neither officers nor 
privates, how, in :he name of all that is called common 
sense and reason, can they be membet s of the army .^ 
But prejiidice can hold its ground against even these 
principles. Let us, therelore, take another view of 
the subject. 

If these stafi* duties can be as well performed with- 
out such membership and rank, then it cannot be doubt- 
ed that, by divesting them of both, the hainionv and 
efficiency of the army would be promoted. If, by 
withdrawing such membership and rank, great addi- 
tional securify would be given to the safety and peace 
of the civil government and community, then it must 
be confessed, at least, desirable and expedient. And, 
finally, if the affirmative of both these propositions be 
shown in the nature of things, and it be further shown 
that the letter and the spirit of the Constitution demand 
both these changes in the existing organization of the 



70 



army, then will it become the imperative duty of Con- 
gress to make them. 

In considering these propositions, let us examine the 
nature and design of that body of agents called the ad- 
ministrative staff of the army. 

Were we to imagine what is called the line of the 
army alone, that is to say, only the combatting portion 
of it, in the field, no matter by what cause it happened 
to be thus stripped of its staff, it would, /or the moment, 
be able to render the service for which it was created, 
namely, to fight the enemy. Let us further suppose 
it to have just rendered such service in a single battle, 
what then occurs? The wounded must be taken care 
of, the damage and loss its material means have sus- 
tained must be repaired, it must be fed, clothed, and 
in all respects be again put in condition to remain in the 
field, and renew its martial service. 

We may conceive two ways only of doing all this. 
First, the commander being put into possession of the 
pecuniary means, may hire surgeons, &c., purchase all 
the various supplies, and distribute and store them, ac- 
cording to the wants of the service. But all this would 
demand much of his time and atiention, and involve 
immense labor and various skill and judgment in mat- 
ters perfectly foreign to his immediate and peculiar 
function. For these reasons, he must be assisted by 
agents. These, in the circumstances we are suppos- 
ing, must consist of his subordinate officers, who would 
thus, too, be drawn away from their proper duties ; all 
which would be to the manifest impediment and jeo- 
pardy of the primary service of the army. 

The other, much better, and in truth the only prac- 
ticable mode, would consist in the appointment, by the 



71 

Government, of a distinct class of agents to do these 
duties ; leaving the commander, with his officers and 
men, to the undisturbed performance of their peculiar 
duties. These, then, would be what are called, sig- 
nificantly too, '•• administrative staff." 

Without going into the examination of the staff at 
large, some classes of which we reserve for separate 
consideration, we suppose enough has been said of this 
portion to give an adequate conception of its nature and 
design. From this general view alone, it is apparent, 
that these staff agents, from the very reason of their ap- 
pointment, so far from being constituent members of 
the army, are emphatically the reverse. That their 
functions are necessary to the well-being, and even to 
the existence of the army, is very true ; but this is no 
criterion of membership ; for, on this principle, the civil 
government itself, who gave to the staff its being, who 
provide for the performance of these duties by appro- 
priating the means, and who do, or rather should, con- 
trol these very functions, would also have membership, 
which is absurd. Membership must be determined, 
(not by the indirect, but) by the direct relation of (not 
professional, hwi) personal sev\\ce', not to any subordi- 
nate, but to the primary end in view of the institution, 
namely, its martial service; and this principle divests 
all these administrative staff agents of pretension to 
such membership. They are to supply to the army 
the materials and means oi its support and its service ; 
to occupy the intermediate place between Congress, the 
purse-holder of the nation, and the army, to be support- 
ed and provided for, from it. With the money appro- 
priated by Congress, they are to feed the army, to 
clothe it, to arm and equip it, to provide fortifications 



72 



in aid of its martial service, and medical and surgical 
attention for its sick and wounded ; to pay its members 
their stipulated wages, and to distribute and store, at 
convenient places for use, its provisions and other mu- 
nitions ; and to carry them about, wherever the army 
moves, in such quantities as may be required. These, 
in biief, are the duties of the administrative staff. They 
are rendered for the civil government on the one hand, 
and to the army on the other. The performers, there- 
fore, are the common agents of both. The services of 
the larger portion of the staff agents are rendered quite 
apart from the army, insomuch that they may never 
see it. What can be plainer, then, than the fact that 
these are not members of the army in any just sense of 
the term? The principle which should comprehend them 
as such would include, in its wide sweep, every agent of 
theirs whose services bore the remotest relation to the 
support or assistance of the army, embracing almost ev- 
ery mechanical profession, every age, and both sexes; 
and, although the rest of the staff are strongly distin- 
guished by serving more or less in personal connexion 
with tiie army, yet the services they render do not bear 
direct iclation to the maitial service. It is this circum- 
stance alone, we repeat, that characterises a member 
of the ai my, because it is this alone that brings him 
under the power of the President in his special capa- 
city of " coinmaniler in chief." One may be under his 
orders, and those of his inferior officers, yet not be 
such; for Congress is the efficient authority over the 
military force itself, and over all connected with it, for 
every other puipose than its martial service. The 
President therefore, is not commander in chief, pro- 
perly speaking, over the administrative staff. He can 



73 

control them only according to law, in his common ex- 
ecutive capacity, that is, subordinately to the legisla- 
tive department. 

Such being the nature of the duties of the adminis- 
trative staff, and such the contiadistinction between 
their performers and the " combatants " of the army, it 
is manifest that the titles of military rank, devised for the 
sole purpose of marking the relative martial authority 
of the latter, are bestowed superfluously, absurdly, and 
mischievously, on staff officers. Since, too, their mem- 
bership cannot be made compatible with the funda- 
mental rule of martial service, and in them such rank 
is, and must be, without the corresponding functions, 
they must be considered, in the least unfavorable point 
of view, as only nominal. The question, then, whe- 
ther the duties can be as well performed without such 
membership and rank, is reduced to one about the ma- 
gical effect of a name ; and this we shall venture to 
pass over undiscussed. 

The next proposition is, that such separation of the 
administrative staff would give great additional securi- 
ty to the safety and peace of the civil government and 
community, against the perfidy and licentiousness of 
the military force. 

In what does the security, under the existing sys- 
tem, consist ? Apparently in the power to disband the 
army, and in the power to withhold the annual or bi- 
ennial appropriations for its support. Are not these, 
it may be asked, efficacious ? We answer, it must be 
recollected that an armj is necessary, as well as dan- 
gerous. To disband it, therefore, in order to guard 
against its perfidy, may be only to expose the country 
to foreign aggression ; to change the danger, not re- 
7 



74 

move iu The power to make appropriations for iff 
support is, in fact, the truly efficacious power for thi» 
purpose. But the existin^^ organization of the army^ 
including the administrative staff as constituent mem- 
bers y renders it null and void ; for thus are they, with 
their money and means, placed under the control of the 
President in his special capacity of commander in chiefs 
and consequently under the like control of his subor- 
dinate commanders. Thus exercised, the power to 
support, so far from being a means of checking the mis- 
conduct of the army, or arresting its perfidious designs, 
actually operates to suspend even the power to disband 
it, by giving to it a temporary independence of the civil 
power, so long as the appropriations may last. It is^ 
too, a palpable violation of the principle of liberty, 
which enjoins the separation of the purse and the sword. 
In the existing system, then, in consequence of this 
vicious membership of the administrative staff with the 
army, there is really no security whatever to the civil 
liberty of the country !! By withdrawing that mem- 
bership, therefore, and taking these staff agents and 
their functions under the control of the civil authority, 
it is perfectly clear, without further remark, that this 
great evil will be removed, and an adequate sanction be 
held by Congress for its laws, or " rules,'' for the gov- 
ernment and regulation of the army. Is it necessary- 
to insist that this is both desirable and expedient ? 

According to our third and last proposition, is it not 
the imperative duty of Congress to make these changes 
in the existing military organization ? The letter of 
the Constitution requires, as we have seen, that the Pre- 
sident shall command, and that Congress shall govern, 
the military forces. As the army shall be constituted 



75 

or created by Congress, such must he receive it as the 
subject of his power of command. But constituted as 
it now is, the power of government is not only lost to 
Congress, but relinquished by it to the very persons 
it was intended to restrain !! What is the spirit of the 
Constitution? It is, in the language of its most distin- 
guished expositors, " a cautious and circumspect spi- 
rit ;" it regards a standing force as a dangerous, at 
the same time that it may be a necessary provision ; 
that, "on an extensive scale," such as it must be in a 
time of war, "its consequences may be fatal " to the 
public liberties. Accordingly, not one power, of a le- 
gislative or discretionary character, for the " common 
defence," that is separable from the hands of the chief 
magistrate, by or under whom that danger was to be 
apprehended, but was sa separated, and expressly in- 
tended to be employed under the guidance of Con^^jress. 
It is, then, the imperative duty of Congress to resume 
all the powers of military government and rjgulation. 
Bringing, now, into view those departments of the 
«taff which we reserved for separate consideration, we 
have to observe, that we have done so, not only because, 
with a partial exception, they are strongly distinguish- 
ed from the preceding, but because the characteristic 
mark of that distinction is none other than the direct 
relation of their personal functions to the martial ser- 
vice confided to the army ; which, therefore, identifies 
them with it, makes them members of it in the proper 
sense of the term, places them under the control of the 
commander in chief as such, and should consequently 
divest them of the name of staff, at least in the sense 
which applies to all the rest. These are the adjutants', 
the inspectors', and, partially, the engineers' depart- 
inents. 



76 

The adjutant''s department has been characterized as 
the " mouth-piece " of the commanding officer, and with 
much force and propriety ; for, whether the example be 
that of the Secretary of War, in his military relation to 
the President, or thatof a regimental adjutant to his colo- 
nel, he is the assistant of his commander in promulgat- 
ing his orders, keeping his records as to the state of the 
army, making his returns and statements to superior 
authority, and so forth. 

In like manner, the inspector's department may be 
called the eye-glass of the commander ; his duty being 
to inspect the condition of the army, and thus collect 
and furnish all necessary information to him. 

These duties are of a nature to be performed in the 
field of action, and are only an extension, as it were, of 
the commanders' own personal faculties of command. 
They are, then, martial duties, inasmuch as those of the 
commander himself are so, tho' not of the same dignity. 
For their performance, which is constant and unremit- 
ting, they require military knowledge of the same des- 
cription which qualifies officers of the line, and agents 
set apart from Other martial duties^ But they msj, with 
great propriety, be deemed to come within the class of 
duties done by " special detail or assignment," so as to 
afford t ) the commander, whose responsibility includes 
theirs, his choice of such agents among the officers of 
his command. The other description of duties, not to 
speak directly of the department performing them, 
which (partially) idientifies its performers with the ar- 
loy, comprises thos?5 of engineering. Of these, it is 
copimoii to recognise three sorts. 

The first is topographical engineering. From the 
nature of land '^'Sff^re, based as it is on general m^ 



77 

minute topography, it will be exceedingly obvious to 
reflection, that the branch of engineering, (so it is called, 
with no great propriety of language, however,) which 
consists in acquiring this sort of knowledge, is but a part 
of the duty of every commander, since as such he is to 
apply it in the field. Without it, he cannot be fitted to 
discharge his duty in what is confessedly his proper 
sphere. The officer who, on any occasion, performs this 
topographical duty, is but the personal aid or assistant 
of his commander, and stands related to him in the same 
military way that the adjutant or the inspector does. 
The duty should, therefore, be regarded as martial, and 
performed in like manner by an officer of the line, as 
occasion may require. 

The second kind is field engineering. This consists 
in erecting temporary forts, batteries, redoubts, and so 
forth, according to the occasional wants and emergen- 
cies of an army in the field. To say that this function 
does not fall under, or form part of, that of the comman- 
der himself, is to imply that he does not command ; and 
he certainly is not qualified for such a station, who can- 
not judge when and where such structures are wanted, 
what purposes they should be contrived to answer, of 
what magnitude, form, and character they should be 
made ; and who cannot both plan and construct them 
with the aid of the troops by whom the manual labor 
must, in such circumstances, always be performed. If, 
by some mental distillation, we could drive from the 
head of the most perfect soldier the qualifications ne- 
cessary to the performance of this bram;h of the art of 
war, the residuum would scarce pass current for a mil- 
itary mind, or bear the weight of a very humble com- 
mission in the service. The commander must himself 
7* 



78 



judge and decide upon all these points most evidently. 
It has been well observed of field works, that they are 
but a modification of the natural or topop;raphical fea- 
tures of a field of battle ; and, therefore, what has been 
advanced concerning the first branch of engineering, 
applies equally to this. 

The third and last branch is called permanent engi- 
neering. It is not entitled to b(.' classed among army 
services at all ; nor its performers, of course, among 
army members. It consists in constructing those solid 
and permanent works, for the defence of a country, 
which are generally, universally we may say, performed 
in time Oi peace ; works, in which the highest art of en- 
gineering, not soldiering, is put in requisition. The 
spots selected for these structures, together with their 
plan, extent, and character, and the conditions they 
are to fulfil, are all determined, not by the President 
in any capacity, but by the legislative department of 
the Government. In like manner, with all other 
technical matters in legislation, these points are deter- 
mined, to be sure, under professional advisement, that 
is to say, both army and naval, especially the latter, 
when, as with us is always the case, sea-coast defence 
is in contemplation ; but never at all under military, 
much less martial, control. The determination of the 
Legislature on such subjects is expressed of course, 
too, in its own appropriate form of law, which fur- 
nish's the rule of conduct in this matter; and the 
President may not contravene its provisions, or exer- 
cise any other than execw/ifc discretion in applying the 
law to its end. It follows, therefore, with obvious 
truth, that the agents of this branch of public service 
are civile not military men. Their services do not bear 



79 

direct relation to martial service, but to building forts, 
which are only means to that end, as shoes are to walk- 
ing The forts might be destroyed and the army continue, 
or the army be disbanded, and both forts and engineers 
remain. They could not be deemed members of the 
army, on any principle which would not equally in- 
clude the workmen whose labors they superintend! 

Navigation — casual repairs to ships at sea — and the 
art of ship building — in the other branch of military 
service, bear a very close analogy to these three de- 
departments of engineering. The art, exercised by 
the naval officer^ of traversing the ocean in despite of 
the impediments of adverse winds and currents, rocks, 
shoals, straits, and so forth, implies a knowledge of 
much the same relative cast with topography. The 
repairs and the expedients, which the battle and the 
storm so pressingly demand, of his mechanical and 
nautical skill, may be considered analogous to the la- 
bors of field fortification ; while t e naval architect and 
the engineer of permanent fortifications, fail in their 
analogy, perfect as far as it goes, only when the latter, 
having exhausted all the points of his art in the com- 
parison, finds it far surpassed in its immediate military 
importance ; for, without the service of the naval archi- 
tect, involving a complication of skill quite equal to 
that of the land engjineer, no navy could exist; the 
sailor, without a ship being no longer such. But army 
services are seldom ren<lered in connexion with forts, 
which, after all, are rather substitutes (or an army thao 
means of its service ; yet, strange as is the fact, the na- 
val engineer, with his all-important function, never 
dreams of pretensions to naval rank of any sort, while 
the builder of forts is not only vested with military 



80 

rank, but absurdly considered as employed " in the 
most elevated branches of the art of war //" 

Nor is this all. They claim, nominally at least, a 
martial function, distinguishing their rank from that 
held by all other agents of the administrative staff, 
namely, the command of troops engaged in sapping 
and mining, and even the general conduct of the at- 
tack and defence of fortified places. Can any thing 
be more inconsistent with the cwil nature of their 
proper duties? What would bethought of the like 
pretensions of the naval architect? Surely conduct- 
ing the attack and defence of fortified places is no- 
thing more nor less than the command of the army 
engaged in that service ; and this., too, while they 
must be regarded as under the exclusive control of 
the civil authority ! As well might the mason, who 
has built your storehouse, claim a partnership in your 
business, and no more absurd in you to admit his pre- 
tensions. Besides, if this branch of martial service be 
allowed to then), it is demonstrable, fi om what has been 
advanced, that the President only is competent to al- 
low it, and then it must be at the exj)ense of their en- 
gineer duties, which, being civiL, it is not competent 
in Congress to place under his control in his martiat 
capacity. 

The innovation in the existing system, to which our 
remarks have tended, contemplates, it should be espe- 
cially noted and remembered, ^f^no change whatever in 
the duties of the staff as now perjormed.^^ It merely 
proposes to divest them of a mischievous rank and mem- 
bership. What objection, then, can possibly be made? 
No substantial one, certainly. 

While this change in the existing system is so em- 



u 

-■iff 

phatically demanded by important considerations, af- 
fecting the harmony and efficiency of the army, and the 
safety of the civil state, from its perfidious and licen- 
tious conduct, it has one further recommendation of a 
very striking character, not yet adverted to. By thus 
withdrawing the staff from all proper membership with 
the regular army, that portion, whose duties are per- 
formed apart from it, may become a "national staff," 
applicable alike to every sort of military land force in 
the service of the United States ; and thus a desidera- 
turn, at once political and military, of the first magni- 
tude, often suggested and pondered without effect, be 
supplied ; and surely that is such, which seeks to con- 
nect the action of the Government of the Union with 
the supply and support of the militia forces on whom 
the main reliance must be placed. 

The power " to provide for the common defence " is, 
at all times, in peace as well as in war, one of tran- 
scendent and vital importance. Expressly confided to 
Congress, that body can never, without a criniiMai neg- 
lect of its duty, loSG sight of it. It is but a part of that 
power " to raise and support armies," whether regular 
or militia. This may, at the discretion of Congress, be 
forborne; but the possession and preservation of the per- 
manent material of war must be attended to, for to this, 
time and unremitting care are indispcnsible. The sud- 
den occurrence of hostilities, to say nothing about " sup- 
pressing insurrections," may otherwise find the public 
liberties and welfare in an indefensible state. Much 
more, of course, might be said on these topics, but we 
leave them to the reflections of the reader ; merely ad- 
ding that, if the staff" be continued as a part of the army, 
it will be necessary for Congress to maintain such army 



Wb 



Ibr the sake of the staff ; or, by disbanding it, lose the 
necessary means of supplying the militia, and neglect it* 
high duties of guarding the civil state against military 
disordet-s, and making the requisite provision for tb« 
** common defence.'* 



ERRATA, 

iHige 27, for Gorgon, read " Gordian." 

33, near the bottom, read " field," in place of fields. 

«7, last line, read " principle," in place of principles. 

48, insert " authority *" after th© word such, in last line but one. 

tS, 18th liue from bottom, read " integrant," in place of integral. 




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